A Hearing Without Being Heard

She knows it's not personal.

The Law's Fine Print

What justices find interesting in Ledbetter's case, according to the language of the Supreme Court, is this:

Whether and under what circumstances a plaintiff may bring an action under Title VII of the Civil Rights Act of 1964 alleging illegal pay discrimination when the disparate pay is received during the statutory limitations period, but is the result of intentionally discriminatory pay decisions that occurred outside the limitations period.

What Ledbetter and Goodyear have been fighting over since 1998 when, at the company's urging, she took the early-retirement offer is this:

Whether she was paid less than the men she worked with because of discrimination or because she wasn't a very good worker.

There's no dispute that after nearly 20 years at the Goodyear plant in Gadsden, Ala., most of them in a salaried managerial position, Ledbetter, 68, was paid less than any of the men she worked with, even those with less seniority.

Ledbetter had always thought that was the case -- some of her bosses had even told her so. But it was spelled out clearly in an anonymous letter she received after she stopped working for Goodyear that contained the rankings and salaries of everyone she worked with.

Her lawyers showed it to the jury on a huge board.

But Goodyear contended that the salaries must be looked at with the rankings. The company said Ledbetter's lower pay was the result of a merit pay plan meant to even the field, and reward supervisors for good work rather than longevity. Ledbetter was typically at the bottom of the rankings, the company argued, and even then she received raises, albeit smaller than those of the men ranked above her.

The jury sided with Ledbetter, saying it was "more likely than not" that she had been paid "an unequal salary because of her sex." Jurors awarded her $3,514,417.

Which was reduced to $360,000 by the judge, who said that was the maximum the law allowed.

Which was reduced to $0 by the U.S. Court of Appeals for the 11th Circuit, which said Goodyear may have discriminated against Ledbetter at some point, but not in the 180 days before she filed her complaint, as the Title VII law prescribes.

Which is what has the justices interested.

Ledbetter's lawyers, backed by the Equal Employment Opportunity Commission, said that the 11th Circuit's decision is contrary to law the Supreme Court itself has established, and that many other lower courts have followed. They argue, in effect, that pay decisions tainted by discrimination become new violations of Title VII each time that employee receives a paycheck. So the discriminatory action fell within the time guidelines in the law, they say.

But Goodyear's lawyers said that the 11th Circuit had gotten the standard right, and that the law is intended to stop ongoing discrimination. Ledbetter could not show that the company had discriminated against her the last time it decided to approve or withhold a pay raise. The solicitor general -- the lawyer who represents the official position of the government before the court -- agreed, and in a notable break, said the EEOC was misreading the Supreme Court's earlier decisions.

Awaiting a Decision

Ledbetter flew up from Alabama for the oral arguments, scheduled for the Monday after Thanksgiving. From her spot in the second row, she watched for signs. She knew that it takes at least four justices to agree to hear a case, and although those sessions are secret, she assumed they were for her. But she didn't know who they were, nor whose vote could be the fifth one she needed.

She didn't think it would be Roberts. Genial in public appearances, he's a sharp-edged questioner, and she recalled his comments being all about whether a finding for Ledbetter would undo the statute of limitations and open employers to decades-old discrimination complaints, she said.

Ledbetter was intrigued by Justice Clarence Thomas, who she'd been told might not automatically be on her side. As is his custom, Thomas did not ask a question during the hour-long argument, but Ledbetter thought he seemed unusually interested.

"He kept sending out for law books -- he had that poor guy running -- and by the end he had a stack of books up to there," she said.

And Ledbetter had a good feeling about the only woman behind that long mahogany bench; Justice Ruth Bader Ginsburg's questions sounded most supportive, she said. Out on the court plaza later that day, after the reporters had gone, a Georgetown professor introduced herself to Ledbetter and told her that Ginsburg had been discriminated against early in her legal career.

But sympathies are one thing, as Breyer and Scalia indicated in that December forum, and the law is another.

"If you're incapable of producing a policy result that you don't like simply because the statute requires it," Scalia told his audience, then look for another line of work. "Run for Congress or something."

Waiting in Jacksonville for a decision that could come anytime before the court finishes its term at the end of June, Ledbetter said she thinks it could go either way.

"I think it's moved on to the law," she said. "Strictly the law."