By Robert Silvey

The Roberts/Bush Supreme Court has delivered another crushing blow to women. In a 5–4 decision, with new justices John Roberts and Samuel Alito in the antiegalitarian majority, the court held that “employers should be protected from lawsuits over pay discrimination linked to gender or race and based on decisions made or acts committed years ago.” Employers should be protected, they wrote, not workers—as though there exists somewhere a powerful cabal of rapacious Amazonian laborers intent on destroying the powerless Goodyear Tire and Rubber Company, and only the Supreme Court stands in the way of its impending bankruptcy.

It was Lilly Ledbetter who needed protection. Ledbetter had worked for 19 years at the Goodyear plant in Gadsden, Alabama, and everyone agrees that she was paid 15 to 40 percent less than men doing the same supervisory job. But the five male justices in the majority, none of whom has ever had the slightest experience of employment discrimination, ruled that she could not demonstrate any intentional discrimination in the 180 days immediately before she complained to the Equal Employment Opportunity Commission (in 1998). In District Court, the jury had awarded her $3 million (though the judge found statutory reasons to reduce that to $360,000) because the discrimination had been cumulative, with the inequality building up slowly over the years. As a result, Ledbetter’s final paycheck (which was within 180 days of her complaint) was itself considered to be evidence of discrimination, although the specific discriminatory actions that caused it to be so small had occurred years earlier.

Alito wrote for the majority that she should have complained to the EEOC each time she received a raise that was less than comparable men received. What planet, I wonder, does Alito live on? Does he know anything about the complex interactions among workers in a workplace on planet Earth? Does he understand how discrimination can be subtle, its effects building up slowly over the years? Does he comprehend the special difficulties women face in the workplace, especially when their jobs are traditionally held by men? Does he care?

Justice Ruth Bader Ginsburg, the last woman on the Supreme Court, wrote a finely crafted dissent in which she decried the majority’s “cramped interpretation” and “parsimonious reading” of the statute. Similarly, in her fiery dissent from the recent abortion-rights decision, she wrote, “This way of thinking reflects ancient notions about women’s place in the family and under the Constitution—ideas that have long since been discredited.” And this time, in an indication of her mounting disgust at the majority’s willful disregard of congressional intent and of the reality of women’s lives, Ginsburg took the unusual step of reading her dissent aloud. It did not change the outcome, but it was at an eloquent protest.

Here are a few passages from Justice Ginsburg’s dissent (full PDF here):

The Court’s insistence on immediate contest overlooks common characteristics of pay discrimination. Pay disparities often occur, as they did in Ledbetter’s case, in small increments; cause to suspect that discrimination is at work develops only over time. Comparative pay information, moreover, is often hidden from the employee’s view. Employers may keep under wraps the pay differentials maintained among supervisors, no less the reasons for those differentials. Small initial discrepancies may not be seen as meet for a federal case, particularly when the employee, trying to succeed in a nontraditional environment, is averse to making waves.

Pay disparities are thus significantly different from adverse actions “such as termination, failure to promote, . . . or refusal to hire,” all involving fully communicated discrete acts, “easy to identify” as discriminatory.… It is only when the disparity becomes apparent and sizable, e.g., through future raises calculated as a percentage of current salaries, that an employee in Ledbetter’s situation is likely to comprehend her plight and, therefore, to complain. Her initial readiness to give her employer the benefit of the doubt should not preclude her from later challenging the then current and continuing payment of a wage depressed on account of her sex.

On questions of time under Title VII, we have identified as the critical inquiries: “What constitutes an ‘unlawful employment practice’ and when has that practice ‘occurred’?”… Our precedent suggests, and lower courts have overwhelmingly held, that the unlawful practice is the current payment of salaries infected by gender-based (or race-based) discrimination—a practice that occurs whenever a paycheck delivers less to a woman than to a similarly situated man.…

Pay disparities, of the kind Ledbetter experienced, have a closer kinship to hostile work environment claims than to charges of a single episode of discrimination. Ledbetter’s claim, resembling Morgan’s, rested not on one particular paycheck, but on “the cumulative effect of individual acts.”… Initially in line with the salaries of men performing substantially the same work, Ledbetter’s salary fell 15 to 40 percent behind her male counterparts only after successive evaluations and percentage-based pay adjustments.…

The Court asserts that treating pay discrimination as a discrete act, limited to each particular pay-setting decision, is necessary to “protec[t] employers from the burden of defending claims arising from employment decisions that are long past.”… But the discrimination of which Ledbetter complained is not long past. As she alleged, and as the jury found, Goodyear continued to treat Ledbetter differently because of sex each pay period, with mounting harm.…

Ledbetter’s evidence demonstrated that her current pay was discriminatorily low due to a long series of decisions reflecting Goodyear’s pervasive discrimination against women managers in general and Ledbetter in particular. Ledbetter’s former supervisor, for example, admitted to the jury that Ledbetter’s pay, during a particular one-year period, fell below Goodyear’s minimum threshold for her position.… Although Goodyear claimed the pay disparity was due to poor performance, the supervisor acknowledged that Ledbetter received a “Top Performance Award” in 1996.… The jury also heard testimony that another supervisor—who evaluated Ledbetter in 1997 and whose evaluation led to her most recent raise denial—was openly biased against women.… And two women who had previously worked as managers at the plant told the jury they had been subject to pervasive discrimination and were paid less than their male counterparts. One was paid less than the men she supervised.… Ledbetter herself testified about the discriminatory animus conveyed to her by plant officials. Toward the end of her career, for instance, the plant manager told Ledbetter that the “plant did not need women, that [women] didn’t help it, [and] caused problems.”… After weighing all the evidence, the jury found for Ledbetter, concluding that the pay disparity was due to intentional discrimination.

But George Bush’s legal ayatollahs disagreed with the jury of Ledbetter’s peers. Roberts, Scalia, Kennedy, Thomas, and Alito found that women are, after all, inferior to men.

If it is true that the evil that men do lives after them, how many years will this decision continue to impoverish American women?

[Cross-posted at Rubicon]