A Matter of Time

The Supreme Court limits lawsuits on pay discrimination; Congress should respond.

TITLE VII of the Civil Rights Act of 1964 prohibits employers from discriminating against workers on the basis of race, color, gender, religion or national origin. It also requires that employees raise such claims of discrimination within 180 days "after the alleged unlawful employment practice occurred." On Tuesday, the Supreme Court ruled in a case that involved the question of when, in situations involving allegations of unequal pay, that 180-day clock starts ticking: Must the complaint be raised, as the five-justice majority found, within 180 days of the discriminatory pay decision -- even if the employee doesn't know at the time that she's being paid less than her male counterparts? Or, as four justices argued in a dissent written by Justice Ruth Bader Ginsburg, does the "unlawful employment practice" recur with every paycheck in which a worker is paid less because of her gender?

As a statutory matter, this is a difficult question. As the majority opinion, by Justice Samuel A. Alito Jr., pointed out, Congress, in passing Title VII, took care to put in a strict time limit, and it didn't make an exception for unequal pay. Interpreting the "unlawful employment practice" to be repeated with every paycheck would make it difficult for employers to defend themselves against charges of discrimination that occurred long in the past. For instance, in the case the court decided, one major piece of evidence involved a supervisor who allegedly retaliated against the employee after she spurned his sexual advances; by the time the case came to trial, the supervisor had died.

At the same time, as Justice Ginsburg noted, pay discrimination is a different, more hidden phenomenon than bias in hiring or promotion: An employee may not have any reason to suspect that discrimination is at work or that male co-workers are being paid more. If an employee simply dallied before filing a discrimination claim, Justice Ginsburg pointed out, courts would retain the equitable power to dismiss such cases. Allowing more leeway for pay discrimination claims would be in keeping with Title VII's "core purpose" of remedying discrimination in the workplace. Eight federal appeals courts and the Equal Employment Opportunity Commission, the agency entrusted with enforcing Title VII, had adopted Justice Ginsburg's view, compared with one that took the majority position.

Whoever had the better reading of the statute, Justice Ginsburg is clearly right on the policy: It's impossible for every victim of pay discrimination to know and take action within 180 days. Congress should adjust the law accordingly. The sensible approach would be to set filing time limits that take account of the differences between pay differentials and other, more easily discernible forms of discrimination. Employees shouldn't be prevented from complaining about discrimination that they had no way of knowing was taking place; employers shouldn't be at the mercy of tardy claims. Congress should move quickly to strike an appropriate balance between these two legitimate concerns.