Cairo Association of Teachers - Newsletter

CAT Tracks for June 9, 2007 HIDDEN DISCRIMINATION...

...and the absence of remedy if/when you find out!

Ruling on pay ignores realities of work place

By Clarence Page
Tribune Media Services

WASHINGTON - Did you ever have the feeling that you might be getting the shaft at your workplace? That other people might be making more money than you do for doing the same work?

If anything unites liberals and conservatives it is the fundamental view that everyone deserves equal pay for equal work. But if you think you have a federal discrimination complaint, you'd better move fast. The U.S. Supreme Court ruled 5-4 last week that you have only 180 days - not after you discover the offense, but after the employer committed it.

If you are one of those who think that it doesn't really matter which man or, someday, woman wins presidential elections, let this high court decision disabuse you of that view. If justice matters, justices matter - and presidents appoint justices.

This case centers on Lilly Ledbetter, who was a supervisor at a Goodyear Tire plant in Gadsden, Ala. Out of 17 managers at the same level, she was the only woman.

She was hired at the same pay as the guys, but received smaller raises for 20 years until she realized in 1998 that her salary was as much as 40 percent less than the men in her position. She filed a complaint with the federal Equal Employment Opportunity Commission, which took her side.

A jury in Federal District Court in Birmingham, Ala., awarded her more than $3 million in back pay and damages, which the trial judge reduced to $360,000.

But the United States Court of Appeals for the 11th Circuit, in Atlanta, erased the verdict. It ruled that Ledbetter failed to file a complaint within 180 days of the act of discrimination, as required by Title VII of the 1964 Civil Rights Act.

The EEOC argued quite reasonably that each paycheck that reflects the initial pay is itself a discriminatory act. That means the clock on the 180-day filing period should be reset as of each paycheck. Earlier decisions by the Supreme Court and some appeals courts had supported this "paycheck accrual" rule.

But U.S. Supreme Court, in a 5-4 decision written by Justice Samuel A. Alito, Jr., rejected that view. "Current effects alone cannot breathe life into prior, uncharged discrimination," Alito wrote in an opinion joined by his fellow Bush appointee, Chief Justice John Roberts, and the rest of the court's conservative wing, Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas, himself a former head of the EEOC.

In her minority opinion, Justice Ruth Bader Ginsburg, the current court's only woman, illustrated the difference that different justices' viewpoints can make.

The majority ignored well-known realities of the workplace, including the "common characteristics of pay discrimination," she wrote. Indeed, employees don't often don't talk to each other much about how much money they make or how big of a pay raise they have won.

And even if a woman discovers she's gotten a smaller raise, she might not think it's worth "making waves" over, Ginsberg wrote. This may be particularly true of a woman or a minority who wants to get along with a white-male-dominated workplace. But that small pay difference can make a big difference over the course of years.

Besides, Ginsberg also pointed out, equal-pay cases are different from most other forms of job discrimination like hiring or promotion cases, in which bias is likely to be detected right away, if at all.

Ginsberg argued that equal-pay cases should be treated more like hostile-workplace cases, in which the discrimination is usually apparent only after repeated offenses. But Alito dismissed that as a "policy argument" with "no support in the statute."

This case offered a classic example of pay discrimination and of a legal loophole that lets some employers off the hook. The plaintiff was shortchanged for 20 years, but the employer, who enjoys the fruits of that discrimination, goes unpunished because the discriminatory practice occurred before the 180-day filing period began.

An earlier Supreme Court rolled back several anti-discrimination laws in the 1980s. Most were restored by congressional action in 1991. Ginsberg called on Congress to do the same this time. Sen. Hillary Rodham Clinton was quick to step up with a proposed bill to do just that.

The high court's justices probably did not intend to hand Sen. Clinton, a Democratic presidential candidate, a dandy campaign issue. But they also know that's how our system of checks and balances is supposed to work.

Laws should not be legislated from the bench. If people don't like what the court has decided, they are free to urge Congress to change the laws. They can also elect presidents who will choose justices who are willing to do justice to the realities of the workplace.

Justices limit amount of time employees have to file charges of wage discrimination

From eSchool News staff and wire service reports

Think you might be a victim of pay discrimination? Planning to file a formal complaint? Better hurry.

That's the essence of a controversial 5-4 decision by the U.S. Supreme Court recently in the case of Lilly M. Ledbetter, a longtime supervisor at a Goodyear Tire plant in Gadsden, Ala. She blamed sex discrimination by Goodyear for a series of actions that left her pay significantly below that of men who did similar work at the plant, including men with less seniority than she had.

But in an opinion written by Justice Samuel A. Alito Jr., the high court ruled May 29 that Ledbetter had waited too long to file a complaint. In a strict interpretation of federal rules affecting such cases, the court held that employees could not sue over alleged pay discrimination under Title VII of the Civil Rights Act of 1964 unless they complained formally to a government agency within 180 days after their pay was determined.

Without a deadline, Justice Alito wrote, "employers would find it difficult to defend against claims arising from employment decisions that are long past.'

Although the case did not involve a dispute over school pay, the decision has broad implications for many employers and employees--including staff members in school district IT departments, where women often are in the minority.

In addition to claims over pay disparities based on an employee's sex, complaints may rely on federal prohibitions against workplace bias involving race, color, religion, national origin, age, and disability.

A major effect of the Supreme Court's decision on school employees and others who believe that their equal-pay rights have been violated will be to force them to act quickly. Legal experts say this could put a burden on employees who might not be certain right away that they have been victims of pay discrimination and thus might need more time to explore the matter before filing a claim.

Lisa Soronen, senior staff attorney at the National School Boards Association, said aggrieved employees would face new pressure to "do their homework" and would need to become more sophisticated in preparing complaints.

She noted that while much information about school salaries is publicly available, it might be difficult for educators to determine the salaries of particular school employees--a factor that could complicate the claims process.

According to Anthony G. Scariano, a veteran school-law attorney at the Chicago law firm of Scariano, Himes, and Petrarca, the Ledbetter ruling is "going to help any employer," including school districts, in dealing with potential complaints. One area that could be affected, Scariano said, is unequal pay for school employees who supervise separate extracurricular activities for boys and girls.

Ledbetter retired in 1998, shortly after claiming that Goodyear had repeatedly violated her rights under federal law. She was earning $45,000 a year at Goodyear--$6,500 less than the lowest-paid male supervisor. The company said, however, that poor performance evaluations, not discrimination, were behind her lower salary.

The federal Equal Employment Opportunity Commission (EEOC) supported Ledbetter's claim and a jury found in her favor. But a federal appeals court rejected the verdict on grounds that Ledbetter had waited too long to begin her lawsuit. In endorsing that conclusion, the Supreme Court agreed that workers who wait more than 180 days to file a claim under civil-rights law are out of luck.

Ledbetter said she hadn't sued earlier because employees are less willing to rock the boat when they are new on the job and have no reason to believe that they might be victims of discrimination.

The Supreme Court declared, however, that "current effects alone cannot breathe life into prior, uncharged discrimination." It continued: "Ledbetter should have filed an EEOC charge within 180 days after each allegedly discriminatory pay decision was made and communicated to her. She did not do so, and the paychecks that were issued to her during the 180 days prior to the filing of her EEOC charge do not provide a basis for overcoming that prior failure."

The EEOC has provided this summary of the law: "Employers may not pay unequal wages to men and women who perform jobs that require substantially equal skill, effort, and responsibility, and that are performed under similar working conditions within the same establishment."

The Supreme Court's decision prompted a strong dissenting opinion, which was written by Justice Ruth Bader Ginsburg. She said the court's majority had overlooked "common characteristics of pay discrimination."

"Pay disparities often occur, as they did in Ledbetter's case, in small increments," Justice Ginsburg wrote. She added that "cause to suspect that discrimination is at work develops only over time. Comparative pay information, moreover, is often hidden from the employee's view. Employers may keep under wraps the pay differentials maintained among supervisors, no less the reasons for those differentials."

The majority ruling also triggered critical statements from groups concerned about individual rights, including the National Organization for Women, the National Partnership for Women & Families, and the NAACP.

Meanwhile, efforts began almost immediately in Congress to counter the ruling's effects. Democratic Senators Hillary Rodham Clinton of New York and Edward M. Kennedy of Massachusetts were among those working on legislation.