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Over Ginsburg's Dissent, Court Limits Bias Suits

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Alito wrote for the majority that "current effects alone can't breathe life into prior, uncharged discrimination." He was joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Antonin Scalia and Clarence Thomas. Thomas is a former chairman of the Equal Employment Opportunity Commission.

"We apply the statute as written, and this means that any unlawful employment practice, including those involving compensation, must be presented . . . within the period prescribed by the statute," Alito said.

Robin Conrad, executive vice president of the National Chamber Litigation Center, said: "If the court ruled the opposite way, employers could have been hauled into court on decades-old claims of discrimination."

But Ginsburg, joined by Justices John Paul Stevens, David H. Souter and Stephen G. Breyer, said the decision sets up a sometimes impossible barrier. "Pay disparities often occur, as they did in Ledbetter's case, in small increments; only over time is there strong cause to suspect that discrimination is at work," she wrote.

Even when unequal pay is discovered, she wrote, women may be reluctant to go to federal court over small amounts: "An employee like Ledbetter, trying to succeed in a male-dominated workplace, in a job filled only by men before she was hired, understandably may be anxious to avoid making waves."

Ginsburg's empathetic statement added that "the same denial of relief" would apply to those alleging discrimination based on race, religion, age, national origin or disability.

Ledbetter, like Ginsburg a woman in her 70s, said she was "disappointed, very, very disappointed" with the decision. "I worked a lot of years doing the hard work and not to get paid as much as the men will affect me every day in the future" in the form of lower retirement benefits, she said.

Judith L. Lichtman, a senior adviser to the National Partnership for Women and Families, said that is what Ginsburg's dissents speak to.

"She talks about the real-world consequences of Supreme Court decisions on the lives of women," Lichtman said.

Ginsburg has been the court's lone female member since Alito replaced Justice Sandra Day O'Connor in January 2006, and both women have expressed consternation about that in interviews since then.

"The word I would use to describe my position on the bench is 'lonely,' " Ginsburg told USA Today this year. Asked what difference O'Connor's departure would make, Ginsburg said only: "This term may be very revealing."

Richard Lazarus, co-director of Georgetown University Law Center's Supreme Court Institute, said that reading a dissent from the bench is significant for a justice. "It's a different order of magnitude of dissent," he said.

Lazarus said Ginsburg's dissents "may be signifying an increasing frustration."


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