Supreme Court Upholds Limits for Pay Bias Lawsuits

Washington Post Supreme Court reporter Robert Barnes was online Wednesday, May 30 at 1 p.m. ET to discuss the court's decision in a gender discrimination case, as well as Justice Ruth Bader Ginsburg's sharply-worded dissent and growing frustration as the only woman on the court.

Over Ginsburg's Dissent, Court Limits Bias Suits (Post, May 30)

The transcript follows.

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Robert Barnes: Good afternoon and thanks for tuning in to our Supreme Court chat. I'll answer what I can about yesterday's ruling and also anything else about the court and its current term. And if there are some things I don't know -- the list is very long -- maybe we'll throw it out to the crowd. There are already a number of questions, and I'll get to as many as I can in the next hour.

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Rockville, Md.: The most basic question: Why did the Congress establish the 180-day requirement that is the crux of the problem in the current case? The facts in this case seem so commonplace; 180 days seems absurdly too few. How did this timeframe come about?

Robert Barnes: There are a number of questions about this, so I'll try to answer this one. I'm not sure of the legislative history, but Justice Alito said in the majority opinion that it was to insure the prompt processing of complaints. He agreed that 180 days was "short by any measure" but added "this short deadline reflects Congress' strong preference for the prompt resolution of employment discrimination allegations through voluntary conciliation and cooperation."

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Washington, D.C.: What is the language in the current law that describes when the 180 day "clock" starts? I'm curious if it simply wasn't defined or if the definition was vague.

Robert Barnes: The appeals court that overturned the jury verdict said the law requires that a suit be filed within 180 days "after the alleged unlawful employment practice occurred." Because Ledbetter could not prove a specific act of discrimination occurred within the 180 days before she filed her suit, the court ruled against her.

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New York: It seems like the majority opinion means newly-hired women will have to either within months of being hired "rock the boat" about whether their salary is commensurate with males, or just eat the loss. The former seems unlikely in the real world, so I was wondering whether you know how many of the Justices have worked "on the ground" in the private sector, and have experience with the private workplace?

Robert Barnes: Well, certainly many of them have worked in the private sector, although all of the current justices were judges immediately before joining the court. At least I think I'm right about that.

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Washington, D.C.: The plaintiff was from Alabama, as am I, and the press there is quoting attorneys there as saying "we still have the equal pay act of 1963" -- either implying that Ms. Ledbetter sued under the wrong statute or that at least there is still a remedy at law. Is that true, and if so, why would that be?

Robert Barnes: Ledbetter sued both under Title VII and the Equal Pay Act. At an early stage of the proceedings, a judge dismissed her complaint under the EPA and allowed the Title VII suit to go forward. Ginsburg said during oral arguments that she thought Ledbetter might have a better claim under the EPA, which does not require filing a charge with the Equal Employment Opportunity Commission or proof of intentional discrimination. "If Ledbetter had pursued her EPA claim, she would not face the Title VII obstacles she now confronts," Alito wrote

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Manassas, Va.: While I agree that the ruling is not very nice for the plaintiff, The Post's intro of "the 5-4 ruling that puts a time limit of 180 days to file a pay discrimination suit" is misleading. The court simply found that in accordance with the statute she had to file within 180 days. The way to fix this is to change the law, not to argue with the findings of the court, or the subjective "fairness" of the decision.

Robert Barnes: You are right that the court did not impose the time limitation, Congress did, and if Congress is unhappy with the decision it can change the law. That happened in 1991 when Congress disagreed with a court decision about elements of civil rights law. As Ginsburg said, "the ball lies again in Congress' court."

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Wayne, Pa.: I have two points: With respect to Ledbetter v. Goodyear, the concept of equitable tolling seems applicable there, especially when there is a cumulative effect of the discrimination. Regarding general civil rights and discrimination lawsuits, I think we have seen the end result of conservative dominance of the courts. One of Nixon's goals when he nominated William Rehnquist was to see the fairly expansive Civil Rights rulings of the Warren Court rolled back. Your comments?

Robert Barnes: I think it's natural for a president to want to appoint justices who share his (should we add now, her?) views about the law. It just doesn't always work out that way.

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San Diego: As you highlighted the "as written" portion of the decision, any idea if the law is going to be amended? I agree with the Court that an open-ended period for discrimination suits may be too long, but six months is unrealistically short. Five years seems more reasonable for employer and employee.

Robert Barnes: I don't know if it will be changed, but several members of Congress -- Sen. Clinton's was the first press release I received -- said they would sponsor legislation. But this is also a very important decision for business, which believes that a ruling the other way would have opened the door for complaints from long ago.

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About the 180 days: A private-sector employee has to file a charge with the Equal Employment Opportunity Commission (or state or local fair employment commission) within 180 days of the alleged unlawful employment practice. It does not sound burdensome to me, and it does prevent stale claims. In the federal sector, an employee must contact an EEO counselor within 45 days of the alleged unlawful employment practice.

Robert Barnes: I'll post this and then a "reply" from another reader

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St. Simons Island, Ga.: The majority's reading of the statute effectively nullifies it. The majority states that it was the intent of the party who initially set the plaintiff's lower salary that resulted in the violation, thus requiring her to file the claim within 180 days thereafter. Of course, the objective evidence of wage discrimination only can be discernable through time as the disparities become apparent. Unless the person setting the salary announces his intent to discriminate (not too likely) how could it ever be established within the 180-day period? To say that this is a strained reading of the statute would be charitable.

Robert Barnes: Y'all should be on the court.

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Washington, D.C.: I dislike Supreme Court reporting that centers around margins (i.e. 5-4). A close decision is as legitimate and precedent-setting as a 9-0 decision. Your story today focuses on Ginsburg's dissent rather than the majority opinion, which matters a great deal more. Why, in your reporting, did you concentrate on a decision margin rather than the substance of a case?

Robert Barnes: Well, I hope you did learn something about the substance of the case from the article. To me, Ginsburg's dissent from the bench -- her second in a relatively short period of time -- said something important about the way the court is changing and the emerging frictions. I thought it was as interesting as the specifics of the case. Others could disagree -- and have. And while you're right that a 5-4 decision is precedent just as a unanimous one is, it is also easier to overturn with a relatively small change in personnel. The decision upholding the Partial Birth Abortion Ban Act is a good example. It will be interesting to see what happens to other issues decided by a 5-4 margin in which Justice O'Connor was in the majority.

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Minneapolis: Ginsburg's dissent is, to me, representative of an activist's complaint that the Court majority interpreted the law instead of overriding it and creating a new "more fair" law. ... Shouldn't her complaint be against the legislative branch and not her fellow judicial branch members?

Robert Barnes: That is certainly a popular view among some. Ginsburg claimed the court's reading of Title VII was "parsimonious," a good legal word I always have trouble spelling.

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Re: 180 days: But shouldn't it be 180 days from having knowledge of the unfair pay practice? If I just find out today that my male co-worker makes significantly more than me, that should start the clock.

Robert Barnes: Well, the majority said that's not what the statute says. Ginsburg seemed to say she would be more generous than that, because a woman might not want to go to court immediately because of a small pay discrepancy, but would if the pattern continued over time.

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Atlanta: There appears to be a belief that had Justice O'Connor still been on the bench that the Ledbetter case would have turned out differently. Yet my recollection is that O'Connor dissented from the majority opinion in the Amtrak v. Morgan, which approved the application of the continuing violation doctrine in hostile environment cases. On what basis is it that people now believe O'Connor would have viewed a discriminatory pay case in a different light?

Robert Barnes: You're right -- the majority in that case was Thomas, Stevens, Souter, Ginsburg and Breyer, with O'Connor concurring in part and dissenting in part. Remember though that O'Connor has been both praised and criticized for deciding only the case that was in front of her. Perhaps there is a feeling she was "gettable" on this case, or that her philosophy changed since that 2002 decision.

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Philadelphia: I guess the only way around the pay equity between the genders is to have all salaries be public. Otherwise, how do I know what others are being paid?

Robert Barnes: You first.

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Indianapolis: The question before the Court was not whether there would be a 180 day deadline for filing -- that bright-line rule was established by Congress and not challenged here. The question was at what point the clock begins to tick. On that point, Congress did not speak with clarity and courts have had to do their work. To permit readers to form a true understanding of this issue, it is important to characterize the question with precision.

My take -- in practical effect, this decision should lead minorities, women, etc. to have a hair trigger for filing EEOC claims any and every time any worker is afforded a bigger wage increase. Businesses should stop and think about the nightmare that would render.

Robert Barnes: That's an opinion others have shared, but you put it very well.

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Arlington, Va.: Let's not forget that this affects government employees as well. Government discrimination is often more difficult to prove than private sector discrimination, and limits your future employability in other ways.

Robert Barnes: I'm not sure I understand why it is more difficult to prove.

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Falls Church, Va.: I've been working in the D.C. area since 1980 as a professional. I've been chased from the Federal government by affirmative action, worked in the private sector for 8A companies whose owners are getting rich while I can't start an 8A company, and heard many many stories about white males with far more qualifications working under less-qualified minorities or women because of needed diversification. So Ginsburg's rebuttal is nothing to my ears.

Robert Barnes: I don't think you'd find a justice who didn't think women and men should be paid equal wages for the same work. Goodyear argued that Ledbetter was paid less because she was not as good a worker, but the jury that heard the evidence disagreed, and awarded her $3.5 million, which was reduced by the judge to $360,000

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Central Ohio: For the first time in our nations history, we now have a Catholic majority on our Supreme Court. Yet it appears to be taboo in the press to acknowledge this aspect of the new majority. So far, when this new majority has come together in its decisions, its rulings seem to favor the Vatican's positions on abortion, the death penalty and the status of women. Recently there has been some controversy about whether politicians who deviate from the Vatican's teachings should be given communion. I believe this has been left up to local Bishops to decide, and I think I read some where that the Pope said that politicians who deviate in effect excommunicated themselves, so there is no need for the Church to do it. Do you have any thoughts on why this new majority is seldom if ever identified as Catholic, and on whether it will pose a threat to our tradition of separation of church and state?

washingtonpost.com: Did Justices' Catholicism Play Part in Abortion Ruling? (Post, April 30)

Robert Barnes: I believe your assertion is wrong. The same majority that upheld the abortion procedure ban is also the most reliable in upholding death sentences.

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Washington, D.C.: I want to correct an emerging misconception that an employee who suspects pay discrimination has to go to court (i.e. sue his or her employer) within 180 days. They can go to the EEOC or local fair employment commission, who must then investigate or attempt to conciliate the charge.

Robert Barnes: We'll let that be the last word. Thanks very much for stopping by. The current term will be completed at the end of June, and we'll learn a lot more about this newly reconstituted court by then. I hope we'll have more chances to talk about it.

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