September 21, 2020

The Supreme Court ruled this week workers cannot sue employers under the Civil Rights Act for pay discrimination more than 180 days after the discrimination first occurs. This decision provoked the court's sole female member, Justice Ruth Bader Ginsburg, to read a dissent from the bench, a rare practice she first used in April after the court's decision to uphold the ban on certain late term abortions. Justice Ginsberg called the majority, quote: "indifferent to discrimination women face in the work place."

In the Ledbetter decision, the only female supervisor at a Goodyear plant in Alabama sued in 1998 after working there for nearly two decades. Women can still sue for discrimination under the Equal Pay Act, but it offers successful plaintiffs much lower awards. The woman's lawyer says workers claiming race discrimination may have no such alternative.

So Congresswoman Norton, if Justice Sandra Day O'Connor were still on the bench, would the decision have been different?

DEL. NORTON: Bonnie, we weren't crying wolf when we said that elections are as much about the Supreme Court as about the president. O'Connor left on her own, but the two Bush appointees will get to stay.

MS. DOMINGUEZ: Well, as a queen of swing, she certainly kept the court on balance. However, this decision was based on a procedural matter, and so it's hard to say whether she would have made a difference or not.

MS. NATIVIDAD: Well, isn't it a coincidence, when only one woman is left on the Supreme Court, all of a sudden women's rights are interpreted much more narrowly? We need more Sandra Day O'Connors.

MS. CONWAY: If Justice O'Connor wanted to make a political statement outside of the letter of the law, she may have agreed with Justice Ginsburg. But if she wanted to apply this narrow statute, she would have had to agree to the majority.

MS. ERBE: What does this mean to the average woman? We have two former EEOC chairs on the panel.

MS. DOMINGUEZ: Well, I think for the average woman, number one, they're going to have to be far more specific in describing the acts of discrimination and when they occur. You can't wait until after you retire in order to say I'm suffering the effects because that's what the court negated. They say you have to file, especially under Title 7 of Civil Right Act. So I think in terms of -- from the employer perspective, you have make sure you monitor your pay practices to make sure that they're free of discrimination.

DEL. NORTON: Or maybe you don't have to make sure, because with this decision, what the court has done is to tare the guts out of the pay remedy under Title 7 for women and people of color.

MS. ERBE: And why is it worse for people of color?

DEL. NORTON: It's not worse, for women and people of color and --

MS. ERBE: Right. But wait a second. One of the lawyers did say that women may have -- women have the alternative of filing under another act. They get much less money if they win, but persons of color don't get that alternative.

MS. CONWAY: Or religion -- or religious discrimination also.

DEL. NORTON: Well, yes. I don't chose to make that distinction, because the Equal Pay Act is not a very useful act today. We need to completely revise it. But what the court has done here is to make it essentially impossible for the average woman. You have to be so quick and you have to know so much. And let me tell you something about pay: who here goes around talking about what your pay is?

Moreover, some employers actually bar employees from sharing information on pay. We have a revision of the Equal Pay Act that we've already had hearings on that would bar that practice. It's almost impossible to now what your coworker makes. And most people regard that as private information. It almost takes a court suit to find out and this rule essentially makes it impossible, but we're going to fix. Congress is going to fix it.

MS. CONWAY: I would imagine over the course of 19 years in a supervisory capacity, this woman must have been exposed to somebody's salary information at some point, and the average work place, this one not excepted perhaps, does have an awful lot of collegial talk and banter and people -- and people either surreptitiously or innocently discovering what other people make.

But the point of the court's decision is as applied with this statute under the current law, you can't just 19 years later say oh, and by the way, I now need to be paid everything I wasn't pays because I was discriminated. You need to give people in our society notice. There are statutes of limitations in civil laws for a reason. It's so that if I hit you with my car today, five years later I'm not worried that you're going to sue me. At some point you need some closure.

MS. NATIVIDAD: The problem is that for most people you don't see a pattern immediately. It comes after several years.

MS. CONWAY: Nineteen?

MS. NATIVIDAD: Yes. Sometimes -- she was in a field where there were very few women -- where she was the sole woman, and so trying to find out in that atmosphere where there are mostly males that you're being discriminated against probably took a lot of time and that is true for a lot of people.

DEL. NORTON: Yes, but I think, probably the reason she --

(Cross talk.)

MS. ERBE: But wait a second. Wait. The whole Justice Ruth Bader Ginsburg's dissent, which she announced from the bench, which is a fairly rare practice -- I covered the court for nine years and I saw it a couple of times in those nine years -- basically said that -- back to your point, Kellyanne -- that when you are fired discriminatorily, when you are hired -- when someone else is hired, when someone else is promoted and you're not, those are acts where you should know within six months that you've been discriminated against, but specifically she didn't know until just before she retired. She didn't find out that the guys who had been promoted at the same level she had but their pay was raised so much more than hers was.

MS. CONWAY: But just on these facts alone, if you look at what her employer said, that a lot of that was based on merit and that she was -- at some point of her 19 years of service at Goodyear, she was placed on a merit based compensation system. And so if there is a record in her files -- and perhaps there was in the lower courts, I'm not sure -- if there was a record in her files of mediocre performance or at least not as stellar performance as the other men, then they have a basis to pay her less. I'm not concluding that she was an underperforming employer. I'm merely saying that we can't just say I wish the outcome were X, let's get ourselves there somehow.

MS. NATIVIDAD: The reality today is that pay discrimination continues to exist. And it doesn't matter how excellent a recorded of a woman is. It's still whether you're a waitress or an executive, that pay gap remains there. And what the Supreme Court did with this decision is to tell us there are no remedies in terms of this particular --

(Cross talk.)

DEL. NORTON: That's exactly right. But what we're going to do, we've already began to meet in the Congress to fix this. And I think there's a very good chance that you'll have a bipartisan fix of this very soon.