pageok
pageok
pageok
Congress Passes Legislation Overturning Holding of Ledbetter v. Goodyear Tire & Rubber:
The Associated Press reports that Congress has finally passed legislation overturning Ledbetter v. Goodyear Tire & Rubber:
  Congress sent the White House Tuesday what is expected to be the first legislation that President Barack Obama signs into law, a bill that makes it easier for women and others to sue for pay discrimination, even if the discrimination has prevailed for years, even decades.
  White House press secretary Robert Gibbs said Obama would sign the bill, a top priority for labor and women's rights groups, Thursday during a public ceremony in the East Room.
  The bill is a response to a 2007 Supreme Court ruling that said a person must file a claim of discrimination within 180 days of a company's initial decision to pay a worker less than it pays another worker doing the same job. Under the bill, every new discriminatory paycheck would extend the statute of limitations for another 180 days.
  The measure, said House Speaker Nancy Pelosi after receiving a congratulatory phone call from Obama, is "a bold step to move away from that parsimonious interpretation" of the Supreme Court.
 After reading that news I took a quick nap, and I had a dream that it was 20 years from now and I was at a law school conference called The Right-Wing Roberts Court: How Bad Was It — Pretty Cruddy, or Really Super Awful Terrible? In my dream, I overheard the following conversation between a critic of the Roberts Court and a first-year law student who was unfamiliar with its history in the early days of the 21st Century:
Critic: The Supreme Court of the early 21st Century was perhaps the most conservative, most activist Supreme Court ever.
Student: Oh, really? What did they do?
Critic: Well, they had one outrageous case in particular, Ledbetter v. Goodyear Tire & Rubber, that became a real cause celebre for civil rights activists. That was really a huge case — the worst of the worst.
Student: Did they strike down an important law as unconstitutional?
Critic: Well, no, it was a statutory case resolving a 2-1 circuit split.
Student: What was it about?
Critic: It's kind of technical, actually. An employment discrimination law required claimants to file their claims 180 days "after the alleged unlawful employment practice occurred." The employee, Ledbetter, was discriminated against in her pay many years earlier. But she didn't find out that she had been underpaid until years later. So the question was whether she could still sue despite the 180 day rule. The employer argued she was too late, because the alleged unlawful employment practice was discriminating against her years before. Ledbetter argued that her pay in the present still reflected the impact of the discrimination she faced years ago, so that her current pay was also an "unlawful employment practice" and she could still sue.
Student: Sounds like a great question of statutory interpretation! And a pretty tough one — I can see why there was a circuit split.
Critic: Well, it doesn't seem that hard to me. Think about it from a policy perspective: It guts the law if an employee can't sue just because the employer hid the discrimination for more than 180 days. But we had a rightwing activist Supreme Court back then, and the Court ruled 5-4 that the "unlawful employment practice" was the discrimination in the past. Because the actual discrimination had occurred years earlier, Ledbetter was too late.
Student: Well, I definitely don't like that as a matter of policy, at least. I hope the Supreme Court will overturn that case someday: It's terrible that we have been suffering under that rule all these years!
Critic: Oh, Ledbetter didn't last very long. Congress overturned it about 19 months later: It adopted Ledbetter's view in the case, so Ledbetter could then sue. That's been the law for the last 20 years, so the Ledbetter case didn't actually stop anyone from suing in the end. But there was a window of 19 months in which we weren't sure if the legislation would pass. It was terrible, and it was all caused by the archconservative Roberts Court resolving that circuit split the wrong way. That's why I think the Roberts Court was beyond just Pretty Cruddy, and was genuinely Really Super Awful Terrible.
Shelby (mail):
Orin, I think criticism of the ruling has been excessive, but not as overwrought as your dream. Maybe you had a too-spicy snack before your nap? ;-)

Maybe you've seen more hysterical denunciations of Ledbetter than I have. Do you have links to any?
1.27.2009 7:30pm
BRM:
So what happens to Ms. Ledbetter now? Did she ever get a jury verdict? How does preclusion affect her?
1.27.2009 7:33pm
Asher (mail):
Isn't the leading exhibit in the case for the Roberts Court as Really Super Awful Terrible Parents Involved? Not that that was wrongly decided either, but it is more hysterics-worthy at least, given that Congress can't overrule it as they did Ledbetter.
1.27.2009 7:36pm
HeScreams:
I expected the dialog to end like this:

Student: LOL WUT?!?
1.27.2009 7:38pm
Mike& (mail):
It's a great example of the three branches of government at work. Sadly, that message will get lost.
1.27.2009 7:43pm
grackle (mail):
Color me dense, Prof. Kerr, but I can't tell from your vignette what you think of either the Roberts court ruling or of this legislation. On the one hand, the Court interpretation seems to work pretty hard to limit the effect of the law, while on the other, I can't see what the effect, over time, of this more explicit attempt to level the playing field might be. How do you see it? It seems that you are indicating that you just don't think that it's a very important issue, but I'm unsure of the depth of your feeling.
1.27.2009 7:47pm
grackle (mail):
And another thing, just how quickly were you sleeping, a little quick or very fast?
1.27.2009 7:48pm
OrinKerr:
Grackle asks: "It seems that you are indicating that you just don't think that it's a very important issue, but I'm unsure of the depth of your feeling."

I normally do not assign my blog posts a "depth of feeling." But my view is that (a) Ledbetter was a pretty hard case as a matter of statutory construction, and either the majority or dissent interpretation was plausible, (b) I am glad the new law passed, as I like it better as a matter of policy, (c) Criticism of Ledbetter has been rather over the top.
1.27.2009 7:54pm
Patent Lawyer:
grackle-

I believe the point was that the outbursts of "OMG ROBERTS COURT OF ARCHCONSERVATIVES DESTROYS AMERICA" over the Ledbetter case are really silly and deserve to be mocked.
1.27.2009 7:56pm
OrinKerr:
Grckle asks:
And another thing, just how quickly were you sleeping, a little quick or very fast?
I worry that you are unfamiliar with the multiple meanings of the word quick. From Webster's:
quick   [kwik] Show IPA Pronunciation
adjective, -er, -est, noun, adverb, -er, -est.
--adjective
1. done, proceeding, or occurring with promptness or rapidity, as an action, process, etc.; prompt; immediate: a quick response.
2. that is over or completed within a short interval of time: a quick shower.
1.27.2009 7:59pm
Richard Souther:
Question: What is the effect on the Ledbetter suit given Congress' effective date on the legislation? Does the fact that the legislation purports to have an effective date of 1 day before the SC decision revive Ledbetter's suit against Goodyear?
1.27.2009 8:19pm
Edward A. Hoffman (mail):
Three points:

1. I doubt that critics of the Roberts Court will consider Ledbetter the most egregious of its decisions.

2. The fact that Congress overturned the decision supports, rather than undermines, the argument that the decision was extreme. (Of course, that does not mean it proves the claim.)

3. That this particular case may not have been an easy one has nothing to do with whether the Roberts Court really is "perhaps the most conservative, most activist Supreme Court ever".
1.27.2009 8:42pm
einhverfr (mail) (www):
I disagree with Edward Hoffman on one of his points (#2).

I thought Ledbetter was a fairly straightforward case regarding statutes of imitations, and I didn't think that the case was legally extreme. However, it certainly was politically out of touch with the desires of the people, so it depends on what you mean by "extreme." In my book this shows the courts doing what they are supposed to do and staying OUT of the policy considerations more than is absolutely necessary. If it is "extreme," then it is an extreme example of judicial restraint :-)
1.27.2009 8:46pm
OrinKerr:
Edward Hoffman,

1) I am glad that you join me in concluding that those who have made such a big deal out of Ledbetter have misrepresented its importance. Of course, what critics will say in the future is hard to predict.

2) Why?

3) Again, why?
1.27.2009 8:51pm
Edward A. Hoffman (mail):
einhverfr:

I didn't say that the decision actually was extreme. I even went out of my way to point out that I was not saying so. You thus are not disagreeing with me.

Prof. Kerr's post argued that the new legislation is somehow evidence that the Roberts Court is not as conservative or activist as its critics claim. But of course a Supreme Court decision that is extreme is more likely to be overturned than one which is not. That Ledbetter is being overturned thus suggests -- but does not prove -- that it was an extreme decision.
1.27.2009 8:52pm
OrinKerr:
Edward,

I think you and I disagree at a very basic level on the nature of the debates over judicial activism and the Roberts Court. In my experience, when critics of the Roberts court say that the court is engaged in extreme activism, they mean that its decisions are obviously following conservative politics rather than the law. The claim is of willful ignorance of legal principles in favor of extreme conservative politics. To the extent a case is really really hard, though, that claim becomes rather hard to make: If a case is a toss up, it's hard to say that a decision is ignoring the law.
1.27.2009 8:57pm
David Malmstrom (mail):
As to Hoffman's # 2 point

Maybe the court used Einer Elhaguge's preference eliciting default rule - extreme decision --> low interim costs --> high likelihood of being overturned by legislation (change in administration)
1.27.2009 8:58pm
Bruce Hayden (mail) (www):
I think that the outcome helps justify the decision. The Supreme Court interpreted a statute literally resulting in a politically unpopular result. Congress responded by amending the statute. What more could we want? Far better, in my view, for the Supreme Court to interpret statutes as they read, and then let the political branches provide political solutions if the statutes don't give a desired result.
1.27.2009 9:00pm
ShelbyC:
Somebody mind clueing me in on the point of having a 180-day statute of limitations that resets every two weeks?
1.27.2009 9:01pm
Calderon:
Prof. Kerr's post argued that the new legislation is somehow evidence that the Roberts Court is not as conservative or activist as its critics claim.

Really? Where do you see that? OK obviously can speak for himself, but it seems to me that his argument about the new legislation is not what you say. Rather, he's arguing that the new legislation shows that Ledbetter was not a very important decision because its effect only occurred for 19 months.

Souther -- the answer to your question is almost certainly "no." I'm too lazy to look up the decision (I'm almost sure it had to do with extending the SoL for securities suits), but the S Ct held in the 1990's that an attempt by Congress to re-open final judgments rendered by the federal courts violates the separation of powers. The S Ct decision in Ledbetter affirmed a decision against her, and thus would have be a final judgment that cannot be re-opened.
1.27.2009 9:07pm
Edward A. Hoffman (mail):
Prof. Kerr:

The Roberts Court has decided 200+ cases thus far, and will likely decide many more. Your arguments suggest that this one particular case was not an example of the kind of activism you describe, but I don't think anyone has seriously claimed that the Court decides every case according to its preferences rather than the law. Showing that one case was not decided on political grounds -- which I do not believe you have done -- would say nothing about how the 200 other cases were decided.

I could probably find a business-friendly decision from the Warren Court without too much trouble, but if I claimed that I had thereby shown the Warren Court was not liberal you would not take my argument seriously. The argument you make here is just the mirror image of this hypothetical.
1.27.2009 9:09pm
llamasex (mail) (www):
It should be noted it took a Democratic congress and president to overturn this as the republican congress and president blocked attempts at this reform. So it was the period of Horrible Conservative Rule, that was luckily ended by people wising up and voting for liberals.

Had that not happened the Roberts ruling would have stood unchanged by congress.
1.27.2009 9:09pm
Calderon:
Souther — okay, I'm not that lazy. The case described in my prior post is Plaut v. Spendthrift Farms. Under its logic, Ledbetter's individual case, and the case of anyone whose action was dismissed for SoL reasons over the last 19 months, cannot be re-opened regardless of what the statute says.
1.27.2009 9:12pm
Lior:
ShelbyC: The statute of limitations only resets as long as the discrimination continues. Say the employee gets fired for good cause, or gets a raise to an equal level of pay. She still has 180 days from her last paycheck to sue about the past pay discrimination.

In general: I was going to say Congress couldn't "overturn" the ruling by making new law (since the ruling only applies to the old law anyway), but then I read the text and discovered that it is an ex post facto law: it purports to apply retroactively to May 28, 2007 (presumably the date when the SCOTUS ruling was made). Can Congress retroactively declare conduct a tort?

PS: Am I the only one who finds the preamble of the law troubling? One of the "legislative findings" is that the Ledbetter ruling was bad policy. But SCOTUS is not charged with making policy -- only with interpreting laws passed by Congress, regardless of the policy implications.
1.27.2009 9:17pm
OrinKerr:
Edward Hoffman writes:
The Roberts Court has decided 200+ cases thus far, and will likely decide many more. Your arguments suggest that this one particular case was not an example of the kind of activism you describe, but I don't think anyone has seriously claimed that the Court decides every case according to its preferences rather than the law. Showing that one case was not decided on political grounds -- which I do not believe you have done -- would say nothing about how the 200 other cases were decided.
As a matter of formal logic, I agree with this comment. I do not know why it is relevant to my post, or why you think it is, but I agree with it.
1.27.2009 9:19pm
OrinKerr:
Edward Hoffman writes:
I could probably find a business-friendly decision from the Warren Court without too much trouble, but if I claimed that I had thereby shown the Warren Court was not liberal you would not take my argument seriously. The argument you make here is just the mirror image of this hypothetical.
Ah, I think I see what you imagine I am arguing. It is not at all what I am arguing.
1.27.2009 9:22pm
Edward A. Hoffman (mail):
Prof. Kerr:

The imaginary critic in your post argued that the Roberts Court "was perhaps the most conservative, most activist Supreme Court ever", and did so at a conference entitled "The Right-Wing Roberts Court: How Bad Was It — Pretty Cruddy, or Really Super Awful Terrible?" I inferred from these facts that you were trying to rebut these claims.

The critic then used one particular case to justify her thesis. Even if the case she chose actually didn't support her position, demonstrating that fact would not disprove the thesis itself.
1.27.2009 9:27pm
Guesty McGuesterson:
You put the rabbit in the hat when you describe the circuit split as 2-1. That's a gross misreading of how lower courts had interpreted the rule for decades. That's like describing Roe as merely a gloss on Griswold that everyone had seen coming (hell, Tom Emerson talked about it during oral arguments).

Ledbetter changed a longstanding and nearly universal understanding of how an important anti-discrimination law worked; gutting it for no reason other than animus towards its ends. It's terrible statutory interpretation and this post doesn't do the ruling justice (or does it far too much). It's no Lochner, but hell, it's just a bad ruling driven more by politics than statutory interpretation or judicial restraint.
1.27.2009 9:27pm
OrinKerr:
Edward,

You misunderstand. The post pokes fun at individuals who have been over the top in their criticism of Ledbetter. However, it does not argue that everything the "critic" says is incorrect. I don't know how I can be clearer about this, but the post is not designed to magically argue that every criticism of the Roberts court is incorrect. You seem to want me to have argued that, so you can then say that the post doens't prove that argument. But of course the post doesn't prove that: it isn't making that argument.
1.27.2009 9:33pm
Kingsley Browne (mail):
It's not clear to me why everyone buys into the argument that Ledbetter was wrongly decided. Ledbetter began work in 1979 and quit in 1998. In 1998, she claimed that she had been subjected to pay discrimination for much of her tenure at Goodyear. Her underpayment relative to men was a consequence of discriminatory performance evaluations that she had received over that period. The principal problem apparently related to her rejection of sexual advances by a supervisor in the early 1980s. This man was conveniently dead by the time of trial. The Ledbetter majority suggested that she should have filed her EEOC charge a long time ago. That seems eminently sensible to me.

The argument of the Ledbetter dissent (and presumably of the new statute, although I have not read the exact version ultimately passed) would allow Ledbetter, or any other discrimination plaintiff, to work for a career with an employer and then sue at the end, claiming that if not for discrimination that had occurred decades earlier, he or she would have earned a lot more over the course of that career. The dissent dealt with this argument by asserting that the employer could always claim "laches," an argument that is almost always a losing one.

If one of the policies of Title VII (given the short charge-filing period, etc.) is to encourage prompt resort to the administrative mechanism set up by the statute, I really don't see anything wrong with the majority's decision. Opening personnel decisions that occurred decades earlier to litigation hardly seems like a sensible policy.
1.27.2009 9:34pm
OrinKerr:
Guesty,

Was the split not 2-1? I was just getting that from the majority opinion -- I have no dog in the fight of what the split was.
1.27.2009 9:34pm
Edward A. Hoffman (mail):
Prof. Kerr:

OK, I misunderstood your argument. That doesn't mean I "wanted" you to make some other argument, let alone that the reason I wanted it was so I could rebut the other argument. You infer a motive where there was none. (Which seems to be what you fault Ledbetter's critics for doing.)
1.27.2009 9:37pm
OrinKerr:
Edward,

I am glad we can reach an understanding. I also apologize for using the "you seem to want" phrase, which was an expression of frustration on my part rather than an actual statement as to your motives.
1.27.2009 9:41pm
ShelbyC:

It's terrible statutory interpretation...


I just don't understand the criticism of the ruling. Why is it so clear that paying a woman a smaller paycheck after someone decidided to give her a smaller raise should reset the clock, but, say, not paying her at all after someone fires her because she's a woman doesn't?
1.27.2009 9:42pm
frankcross (mail):
Kingsley, inquiry notice is pretty much the rule for statutes of limitations and it has been read into many claims including those under federal statute. It seems silly to bar someone's claim when they had no reasonable ability to discover its existence within the limitations period. The Court's unwillingness to allow such notice was questionable, in my view, but I would agree that it's not enormously significant.
1.27.2009 9:45pm
Mahan Atma (mail):
"But there was a window of 19 months in which we weren't sure if the legislation would pass."


Don't you mean to say, "There was a window of 19 months in which the legislation could not have become law because President Bush would have vetoed it, and Republicans would not have voted for it"?
1.27.2009 9:47pm
Kingsley Browne (mail):
Perhaps I should also mention that it is probably incorrect to view Ledbetter as a discriminatory compensation case at all if the relatively skeletal facts contained in the majority opinion are accurate.

Discrimination in compensation means that similarly situated people are paid differently. Thus, in Ledbetter's case, if she showed that men with the same performance evaluations as she received were paid more, that would suggest compensation discrimination. If men with the same (poor?) evaluations as she received were paid the same, the compensation system is not itself discriminatory.

If Ledbetter did not deserve those evaluations, then the performance evaluations, not the compensation decisions, were made on a discriminatory basis. Of course, if you look at it like that, it makes it even more apparent that those allegedly undeserved performance evaluations (supposedly given because of her rejection of her conveniently dead supervisor's advances) were the events that should have triggered her charge.

Viewed that way, it is not clear that Ledbetter should be any more entitled to prevail under her eponymous Act than a person who claims that if she had not been discriminatorily denied a promotion twenty years ago, she would have made a lot more money.
1.27.2009 9:49pm
James Balkin:
I think the legal satire would work better if it followed more of a Jack Balkin style.
1.27.2009 10:01pm
db:
I agree with Professor Kerr that the criticism of Ledbetter was over the top. What makes it all the more puzzling is that much of the outcry has focused on the plight of women, even though they are the one group for which the Ledbetter holding makes no difference. This is so because, in addition to Title VII, women may also challenge wage discrimination under the Equal Pay Act. As both the majority (slip op. 21) and dissent (slip op. 16) recognized, a new cause of action accrues under that statute with every paycheck that reflects a pay disparity due to sex. Indeed, Ledbetter only ran into Title VII's harsh time bar because she had waived her claims under the EPA.

Of course, Justice Ginsburg was correct in noting (slip op. 17) that the Court's reading of Title VII did makes things more difficult for other beneficiaries of Title VII, such as racial minorities, since they cannot resort to the EPA in order to avoid Ledbetter's holding. That subtlety got lost, however, in the public criticism of the decision.
1.27.2009 10:01pm
Kingsley Browne (mail):

frankcross:
Kingsley, inquiry notice is pretty much the rule for statutes of limitations and it has been read into many claims including those under federal statute. It seems silly to bar someone's claim when they had no reasonable ability to discover its existence within the limitations period. The Court's unwillingness to allow such notice was questionable, in my view, but I would agree that it's not enormously significant.


I agree that this is an issue lurking in the background, but it is one that the Supreme Court has never addressed in the Title VII context, although it has had opportunities to do so.

I assume that part of the Court's reluctance is that it has been concerned about plaintiffs arguing, "Well, I was told that I was not hired because there was no opening; it was only years later that I found out that there was an opening. I was misled by the employer's misrepresentation about the reasons; therefore, the employer should be estopped to raise the timeliness issue." Analogizing to, say, medical malpractice cases where the defendant doctor has actively misled the patient about either his condition or the quality of care he received, the answer might be to accept the plaintiff's argument, which would to a very large extent eliminate any effective timeliness requirement.

In this case, at least under my reading of the facts, Ledbetter was on inquiry notice. She knew (I believe) of the adverse performance reviews and she also knew that at least some of them had been given by a supervisor whose advances she had spurned.

It might be unfair not to allow a claim based upon a wrong that was not discovered until after the statute of limitations had passed, but I don't think it is "silly." That is the basis for statutes of repose. Those are controversial, of course, but I think that even people who think that their unfairness outweighs their utility understand that there is some legitimate reason to be afraid of stale claims.
1.27.2009 10:03pm
1Ler:
I have a huge attachment for the Ledbetter case. It was the first case that I really followed as an undergrad student, and it presents the first successful political response to a Supreme Court case that I've seen in my adult life. Fascinating stuff.

Here's the bill, if anyone's interested.


I am totally with Prof. Kerr in being amused and befuddled by the reaction to the case. Sure, it was hard to square with Bazemore, and I would have probably leaned the other way if it were up to me. But it was a close call, and it stemmed from Congress's own incompetence in statute-drafting. The Court enabled Congress to get the proper political support to revise the statute as it sees fit.
1.27.2009 10:05pm
David Matthews (mail):
As Bruce Hayden said, above, this is precisely the way things ought to work.

When Congress passes something that they intended to say "A," but didn't say exactly "A," and it comes before the Court, they, quite rightly, said, regardless of what you wanted to say, you clearly didn't say "A;" maybe you should fix it.

And now Congress fixed it.

It is not the role of the Supreme Court to fix the mistakes of Congress; but it often becomes their role to highlight such mistakes, allowing Congress to, when it chooses, fix its own mistakes.

Seems heartless to the press, who are likely to go with, "Awww, you know what they meant...."

And, Orin's point in the original post was: A whole bunch of commenters latched onto the result of the Court's decision, rather than its basis. There's nothing (or there should be nothing) inherently conservative or liberal about a Court that rules on the actual legislation before it, rather than on the consequence of accepting the legislation as written.
1.27.2009 10:05pm
krs:

The argument of the Ledbetter dissent (and presumably of the new statute, although I have not read the exact version ultimately passed) would allow Ledbetter, or any other discrimination plaintiff, to work for a career with an employer and then sue at the end, claiming that if not for discrimination that had occurred decades earlier, he or she would have earned a lot more over the course of that career. The dissent dealt with this argument by asserting that the employer could always claim "laches," an argument that is almost always a losing one.

Interesting. Wouldn't be the only federal remedial program to be used as a substitute for retirement planning.
1.27.2009 10:06pm
whit:

2. The fact that Congress overturned the decision supports, rather than undermines, the argument that the decision was extreme. (Of course, that does not mean it proves the claim


congress did not overturn the decision. congress cannot overturn a SCOTUS decision. your statement makes no sense.

congress RESPONDED to the scotus decision. the decision enlightened them to the fact that the law was inadequate to protect many victims of employment discrimination, so they changed the law.

that's how democracy is supposed to work.

but in no way did congress OVERTURN the scotus. heck, for all we know every man/woman on the scotus thought the law was stupid and needed to be changed.

but to get a little rumsfeldian: the scotus doesn't rule on the law they wish they had, they rule on the law we have.
1.27.2009 10:06pm
Eli Rabett (www):
Compare and contrast:

Kerr's reaction to Ledbetter v. Goodyear Tire &Rubber

Kerr's reaction to Kelo v. The City of New London
1.27.2009 10:07pm
Nick056:
I know that Professor Kerr didn't intend to have people rehashing the Ledbetter ruling in the comments, necessarily, but the opinion is really remarkable and I think a few insufficiently resolved problems underscore the weakness of the majority holding.

The majority view of Bazemore is fascinating. Ledbetter was able to rely on a Title VII case whose holding made each paycheck rooted in a discriminatory act a recurring act of discrimination. The crucial line is that "each week's paycheck that delivers less to a back than a similiarly situated white is a wrong act under Title VII." No, this doesn't settle the present case entirely, but the interpretation of Brennan's opinion by Alito is, to me, strange.

Alito's opinion holds that because Brennan clarified in Bazemore the retroactive power of Title VII and cast ongoing pay differences as recurring acts, the sum total of Bazemore's relevance is that "a freestanding violation may always be charged within its own charging period regardless of its connection to other violations."
Essentially, knowledge of past discrimination doesn't preclude a suit based on current discrimination. That's quite a limiting "in other words" version of Brennan.

In Alito's view, Bazemore scarcely adds more to the case than Morgan and neither opinion affirms that an action which isn't discrimination is still actionable under EEOC because it is related to discrimination. Alito dismisses to easily the very real and weighty probability that a paycheck rooted in discrimination constitutes itself a discriminatory act.

Finally, Alito quotes the following from Steven's opinion in Evans and says that "it would be difficult to speak to the point more directly":

United was entitled to treat Evan's termination as lawful after respondant failed to file a charge of discrimination within 90 days [...] A discriminatory act which is not made the basis for a timely charge is merely an unfortunate event in history which has no present legal consequence


This is relevant, to be sure, and aids the majority's case, but an open and admitted firing under a clear if discriminatory policy cannot produce a holding that speaks directly to pay discrimination. The differences between the two types of circumstances are elaborated upon in the Ledbetter dissent, and I think Alito errs gravely in considering that quote from Evans so germane. Again, if anything speaks directly to the point isn't that Brennan's description of a paycheck rooted in discriminatory policy as a chargeable act?
1.27.2009 10:09pm
Richard Souther:
Calderon - Plaut specifically refer to "final judgements entered before [the law's] enactment." Doesn't section 6 of the act get around that?

SEC. 6. EFFECTIVE DATE.

This Act, and the amendments made by this Act, take effect as if enacted on May 28, 2007 and apply to all claims of discrimination in compensation under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.), the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq.), title I and section 503 of the Americans with Disabilities Act of 1990, and sections 501 and 504 of the Rehabilitation Act of 1973, that are pending on or after that date.

The act states that it "take[s] effect as if enacted on May 28, 2007", thus getting around the separation of powers argument because the judgment did not become final until the day after the law was enacted. Therefore, Goodyear's SOL argument is moot because, on May 28, 2007, Ms. Ledbetter's complaint was deemed timely filed because her case was pending at the time the law was enacted.

I think this may be headed back to the Supreme Court on the issue of whether or not Congress can undo a specific final judgment by inserting the "as if enacted on [some day prior to when actually enacted]" language into a statute.
1.27.2009 10:14pm
Repeal 16-17 (mail):
Whit, there's no need for semantics in this case. When people refer to this new law as "overruling" or "overturning" the Ledbetter decision, it's a reference to that law causing the result of that case no longer being good law.
1.27.2009 10:19pm
Repeal 16-17 (mail):
It's very hard to get a text of a bill via THOMAS without it being a "temp". Here's the best I could do.

1.27.2009 10:32pm
Repeal 16-17 (mail):
http://thomas.loc.gov/cgi-bin/query/z?c111:S.181:
1.27.2009 10:33pm
Harvey Mosley (mail):
IANAL, so this may be a stupid question. What's the difference between

take[s] effect as if enacted on May 28, 2007

in this law, and the same language in a law that raises the minimum wage?
1.27.2009 10:33pm
OrinKerr:
Eli Rabbett:
Compare and contrast:

Kerr's reaction to Ledbetter v. Goodyear Tire &Rubber

Kerr's reaction to Kelo v. The City of New London
Does anyone know what this means? I don't get it.
1.27.2009 10:36pm
1Ler:
Prof. Kerr, I think Eli wants you to recognize a Fifth Amendment due process right to be free from 180 day filing deadlines in Title VII cases. In fact, I think he may even be outraged at your shortsightedness--can't you see that Kelo and Ledbetter present the same question?


...And for the ever-present danger of the sarcasm being lost in print, I'm kidding.
1.27.2009 10:40pm
ShelbyC:

Doesn't section 6 of the act get around that?


It's a little too cute. Let's pretend the law took effect on May 28, 2007. Well, the supreme court dismissed her case the next day. So her claim is still barred by res judicata.
1.27.2009 10:45pm
OrinKerr:
1Ler,

That was pretty funny, actually. Well played.

(On a serious note, I think Eli may have confused me with co-bloggers like Ilya who have tried to use Kelo to jumpstart political reform. But I'm just guessing.)
1.27.2009 10:50pm
JonC:

Oh, Ledbetter didn't last very long. Congress overturned it about 19 months later: It adopted Ledbetter's view in the case, so Ledbetter could then sue. That's been the law for the last 20 years, so the Ledbetter case didn't actually stop anyone from suing in the end. But there was a window of 19 months in which we weren't sure if the legislation would pass. It was terrible...


Even this (clearly tongue-in-cheek) description overstates how "terrible" Ledbetter was. As was indicated at oral argument and in the decision itself, Ledbetter's discrimination claims would have indisputably been timely had she pursued them under the Equal Pay Act at the appellate level. The Equal Pay Act has a longer statute of limitations, and Ledbetter's counsel admitted at oral argument that thee failure her EPA claims was a mistake. Thus, if the point was to ensure that people Ledbetter's situation will be able to pursue employment discrimination claims, this legislation was completely unnecessary, since the Equal Pay Act incontrovertibly provides them with a cause of action. The true purpose of this legislation was to provide a sop to the plaintiff's bar, in return for their financial support for Obama's campaign.
1.27.2009 10:51pm
Paul Allen:
Orin:
Ledbetter's essential claim was that because current pay can be represented as pay[i+1] = pay[i] + raise, then pay[0] is a component of any future pay[i+1].

To assume this concept as model for how business is conducted--as Ledbetter's claim attempted--is a ludicrous presumption. I fail to see how the issue is "close". The model simply does not capture business practice.

Guesty McGuesterson states, "Ledbetter changed a longstanding and nearly universal understanding of how an important anti-discrimination law worked". The Ledbetter assumption seemed novel to me; what is the proof of McGuesterson's statement?

I find it interesting that under the new act, Ledbetter is no more likely to prevail. The act requires a finding of discrimination in the "present" to incur the liability of similar discrimination in the past. That wasn't the point as issue at the SC.

What a bunch of dishonest partisan hash.
1.27.2009 10:54pm
GatoRat:
If I understand the facts of the Ledbetter case, even had this law been in effect at the time, she still wouldn't have a claim.

That said, I'm quite baffled how anyone fails to see that this is how our government is designed to work. (Though I would prefer a little more adversarial discussion.)
1.27.2009 11:00pm
Matt_T:
I think the legal satire would work better if it followed more of a Jack Balkin style.

I see what you did there.
1.27.2009 11:09pm
Mike& (mail):
Does anyone know what this means? I don't get it.

I haven't "got" most of the comments for at least a year.
1.27.2009 11:25pm
Joseph Slater (mail):
Gosh, I think (i) Ledbetter involved an important issue and was wrongly decided and concerned an important issue, and (ii) that the Roberts court is pretty darn right wing.

But I still thought Orin's post was pretty funny.
1.27.2009 11:33pm
Joseph Slater (mail):
Wow, I guess I thought Ledbetter involved such an important issue that I needed to say it involved an important issue twice in the same clause. Either that or I need to go to bed now.
1.27.2009 11:34pm
Mahan Atma (mail):
Let's try this again: How about an admission from the Republicans conservatives here that you guys actually opposed the new legislation? Or that at the very least, you actually voted for politicians who did?

Trying to pretend like this was really all just a matter of statutory interpretation is rather disingenuous. The fact is that Republicans conservatives did not want Ledbetter to be able to bring claims like hers, as a matter of policy.

Kerr, I'm guessing you voted for the politicians who opposed the legislation, am I correct?
1.27.2009 11:38pm
Eli Rabett (www):
The court said in Kelo that such takings were legal and if the legislature didn't like it they could change the law. Seemed to me that it was a reasonable position. The entire Volokh team had a hissy fit.

In Ledbetter, the court gave a giant fu to the obvious intent of the law** and in response the legislature is changing the law, so Owen is having a hissy fit. It might not be a good idea for the court to try and challenge this if they want a pay raise.

**If the court's interpretation was correct there was no point in passing the law as it would have no effect.

You guys are about as subtle as Norm Coleman's lawyers.
1.27.2009 11:42pm
Libertarian1 (mail):
IANAL

Allow me to present a hypothetical. 25 years ago Mrs Tinbetter is hired to work for a corporation. Not being used to such a confining position she comes in late 1-2X a week for the first 3 months. Her boss calls her in, reads the riot act, and tells her shape up or ship out. At her 3 month review she gets a 4% raise instead of the usual 5%.

She learns her lesson and is never late again and every single subsequent paycheck is exactly the same as every other employee. Of course 5% on top of the original substandard 4% compounds so her pay checks are significantly less than everyone else. 20 years later she sues. She claims racial/sexual bias. The corporation says pay docked for poor work practice.

Let's call in for testimony the actual boss who docked her. Oh, he died 10 years ago. Let's call in for testimony her fellow workers. Oh, they have retired and moved on. What is in the employee record from 20 years ago. Are you kidding, nobody recorded minutia like that back then. I assume, it is because of this the law established a statute of limitations.

My guess is from now on, every single time any employee does anything even marginally wrong it will be entered into the permanent record. If the employee wishes to change jobs the record may follow them. Is that what we truly want?
1.27.2009 11:43pm
Calderon:
Souther said "The act states that it "take[s] effect as if enacted on May 28, 2007", thus getting around the separation of powers argument because the judgment did not become final until the day after the law was enacted. Therefore, Goodyear's SOL argument is moot because, on May 28, 2007, Ms. Ledbetter's complaint was deemed timely filed because her case was pending at the time the law was enacted."

Maybe, but I'd be very surprised if Court's interpreted Plaut like that. The core of Plaut is that final judgments cannot be re-opened. To the extent that legislation purports to re-open final judgments -- regardless of how it seeks to accomplish that result -- it is an unconstitutional violation of the separation of powers. If Ledbetter or others argue that the statute allows them to re-open the judgments against them in their cases, I think it's highly likely the statute will be held unconstitutional.

Also, there's an issue with the way that portion of the statute is phrased that could lead to the same result on statutory grounds. Specifically, the statute says that it will "apply to all claims of discrimination ... that are pending on or after that date." The claims of Ledbetter and others over the last 19 months cannot be said to be claims that "are pending"; instead they've been dismissed and are no longer pending. Assuming a court was serious about applying the constitutional avoidance canon, the court could decide that the statute is sufficiently ambiguous so that it should be interpreted to avoid reaching the separation of powers question (even though I think Plaut gives a clear answer to that question). Thus, a court could interpret the statute to mean that it only applies to cases that now "are pending" (which by definition are those where no final judgment has been entered) and not those cases like Ledbetter's that are no longer pending because a final judgment has been entered.
1.27.2009 11:56pm
OrinKerr:
Mahan writes:
Let's try this again: How about an admission from the Republicans conservatives here that you guys actually opposed the new legislation? Or that at the very least, you actually voted for politicians who did?

Trying to pretend like this was really all just a matter of statutory interpretation is rather disingenuous. The fact is that Republicans conservatives did not want Ledbetter to be able to bring claims like hers, as a matter of policy.

Kerr, I'm guessing you voted for the politicians who opposed the legislation, am I correct?
Mahan, I had taken you for a more serious person than that: I knew you were very liberal, and that you disliked conservatives, but I guess I didn't realize you saw it as this weird personal thing.

Anyway, I personally support the legislation, although I am not expert in the issue and I only reached that decision earlier today when reading some of the press coverage of the question and it seemed like a pretty good idea. I have no idea which view is more persuasive as a statutory matter in the Ledbetter case: Seems like a really hard issue to me, and I gave it the 30 minute review instead of the 5 hours I would have needed to really have a view on it. (I hope that is okay.) As for whether I voted for politicians who opposed it, I don't know: Who opposed it? I did vote for McCain for President, although I don't know his position on it. I would imagine that he opposed it, as I understand the issue became a big left/right issue, in which case I did in fact support a politician even though he disagreed with me on the issue. Although I only decided that I supported the law today, and I voted for McCain back in November, so I'm not sure what any of this is supposed to show.
1.27.2009 11:56pm
OrinKerr:
Eli,

Ah, I get it: You think I am a hypocrite because I am a co-blogger with someone who said something that if I said it it would be hypocritical with something I actually did say!

Norm Coleman's lawyers must be truly extraordinarily subtle.
1.28.2009 12:02am
Calderon:
Eli Rabett said The court said in Kelo that such takings were legal and if the legislature didn't like it they could change the law. Seemed to me that it was a reasonable position. The entire Volokh team had a hissy fit.

In Ledbetter, the court gave a giant fu to the obvious intent of the law** and in response the legislature is changing the law, so Owen is having a hissy fit.


I seriously doubt this description of what the Volokh conspirators did is correct, but let's assume it is. Do you really think a Supreme Court decision that gives a lax interpretation to a constitutional provision that is meant to be restriction on government action is equivalent to a decision interpreting a statute that regulates relations between two private parties? The Supreme Court itself disagrees with that proposition when it comes to stare decisis, and there's good, obvious reasons to think that mistaken constitutional interpretations are worse than mistaken statutory ones.
1.28.2009 12:14am
Mahan Atma (mail):
"I did vote for McCain for President, although I don't know his position on it. I would imagine that he opposed it..."


You imagined correctly.

I knew that way back when, and I didn't have to spend hours researching the issue.

I'm not trying to make this personal, and I don't know you well enough to say you fall into this category, but there are plenty of Republicans conservatives who pretend to support the Court's decision solely on legal grounds when they really support the outcome on policy grounds.
1.28.2009 12:22am
Mahan Atma (mail):
BTW, Orin, did you also vote for Bush?

Because of course, he threatened to veto the legislation.

And while I don't automatically assume anybody who votes for a politician agrees with everything the politician does, at the very least, one might think that particular issue isn't very high on that particular voter's list of priorities.
1.28.2009 12:30am
Paul Allen:

How about an admission from the Republicans conservatives here that you guys actually opposed the new legislation?

Nope, the substantive portion of the law is okay; I don't feel confident about the side-effects so this wouldn't be on my agenda, but I don't oppose it.

I do oppose the rubbish in the preamble though, and I oppose the ridicule heaped on the Robert's court for this decision, and Ginsburg's abuse of the public trust in her misleading framing of the court's decision.
1.28.2009 12:34am
OrinKerr:
Yes in 2000, no in 2004. Can you explain to me what that is supposed to signify?
1.28.2009 12:34am
Mahan Atma (mail):
"Yes in 2000, no in 2004. Can you explain to me what that is supposed to signify?"


Well, I guess you'd have to tell me.

You voted for McCain without knowing his position on the issue, so would I at least be correct in saying the issue wasn't very high on your list of priorities?
1.28.2009 12:39am
Nick056:
Mahan, as somebody happy with the new law and unhappy with the opinion, Professor Kerr still deserves a presumption of good faith, doesn't he? Why would he possibly fall into a category full of disingenuous people when, if nothing else at all, dishonesty would be of no benefit to him? The conservatives supporting the decision as pretext (do you know how fully the professor even support the decision?) are threading a politicial needle which I don't think applies to Professor Kerr. Why would Kerr be pretending anything?

Also, I'm not really sure why some people here are worried primarily about all the baseless litigation that might follow from this law. After all, doesn't the Ledbetter case present a litigant whose case has apparent merit? Do we really want to protect employers from discrimination suits because it would be such a terrible thing to allow employees a chance to affirmatively prove discrimination? On a philosophical or even emotional level, doesn't it boil down to this question: isn't the actual fact of discrimination more important than the empty grievance suits that float around?
1.28.2009 12:47am
Paul Allen:

but there are plenty of Republicans conservatives who pretend to support the Court's decision solely on legal grounds when they really support the outcome on policy grounds.

No doubt, but the bill does not overturn the core holding. The two points of question are really so distinct at to put truth to the lie that underlined the whole meme played up by the left on this issue.

The new bill declares that doing x "today", restores your liability for doing x "yesterday". The Ledbetter holding is that doing x "yesterday" is not the same as if you also did x "today".

If you still have trouble seeing how those two are different, I suggest reading Affirming the Consequent on Wikipedia
1.28.2009 12:49am
Mahan Atma (mail):
"Mahan, as somebody happy with the new law and unhappy with the opinion, Professor Kerr still deserves a presumption of good faith, doesn't he?"


Look, if he says he supports the new law, then I believe him.

But at the very least, it has to a pretty insignificant issue for him if he didn't even know McCain's position on the issue when he voted for him. Isn't that right?

In any case, I apologize if I made this personal. That wasn't really my intention; my point isn't aimed at Orin specifically.

I just find it annoying when people vote for Republicans conservatives, and then pretend they didn't really desire the (entirely predictable) outcomes that follow. The whole "deregulation" thing comes to mind, as of late...
1.28.2009 12:56am
Mahan Atma (mail):
"No doubt, but the bill does not overturn the core holding."


Ah, I see. So what you're pushing for is a bill that really overturns the core holding.
1.28.2009 12:59am
Paul Allen:

Ah, I see. So what you're pushing for is a bill that really overturns the core holding.

haha. Another fallacy. Maybe you can discuss the substantive point I raised first.
1.28.2009 1:08am
Nick056:
Paul,

x = discriminatory pay decision, "unlawful employment practice"

y = paycheck affected by x

SCOTUS: if and only if x, then y. But y is not a discrete act, and cannot make x a current offense even if y is current.

Congress: if and only if x, then y. Y itself therefore also an "unlawful employment practice" as it is the result and persistant effect of x, and therefore you are liable for x.

I'm sure you can see, Paul, that it's not about whether x gets done today or tomorrow, but about whether y is a discrete act as tainted as x, proceeds directly from x and is the real effect of x, and therefore restores liability for x. No one questions that x violates Title VII - it's whether y by itself violates Title VII and is sufficient to recall x. The core holding of the court went to that, and so did the law.
1.28.2009 1:19am
David M. Nieporent (www):
And while I don't automatically assume anybody who votes for a politician agrees with everything the politician does, at the very least, one might think that particular issue isn't very high on that particular voter's list of priorities.
Other than trial lawyers, I can't imagine overturning Ledbetter was high on anybody's list of priorities.

I'm not trying to make this personal, and I don't know you well enough to say you fall into this category, but there are plenty of Republicans conservatives who pretend to support the Court's decision solely on legal grounds when they really support the outcome on policy grounds.
I don't understand. Who do you think pretends to support the decision "solely" on legal grounds? Why do you think that someone who supports the decision on policy grounds is somehow prevented from supporting it on legal grounds? What on earth are you talking about? If one thinks it was correct as a matter of precedent and that it's good policy, why does one need to "pretend" anything?
1.28.2009 1:29am
Mahan Atma (mail):
"I don't understand. Who do you think pretends to support the decision "solely" on legal grounds?"


You mean you want me to make it personal?

"Why do you think that someone who supports the decision on policy grounds is somehow prevented from supporting it on legal grounds?"


I don't.
1.28.2009 1:42am
Mahan Atma (mail):
"Other than trial lawyers, I can't imagine overturning Ledbetter was high on anybody's list of priorities."


Right... I can't possibly imagine who thought it was important...
1.28.2009 1:43am
LM (mail):
OrinKerr:

In my experience, when critics of the Roberts court say that the court is engaged in extreme activism, they mean that its decisions are obviously following conservative politics they oppose rather than the law. The claim is of willful ignorance of legal principles in favor of extreme conservative partisan politics. To the extent a case is really really hard, though, that claim becomes rather hard to make: If a case is a toss up, it's hard to say that a decision is ignoring the law.

I'm not suggesting your way precludes mine, but neither did I change it just for cosmetics. If either side's criticism of the Court's politics is more noteworthy, I think it's the right's. Since the fifth most liberal Justice, Kennedy, is right of center, it's no surprise half the liberals consider the Court too conservative. What's harder to rationalize is that a third of conservatives think the Court is too liberal.

I suspect most of those "too liberal," "too conservative" complaints reflect a much more promiscuous view of legal principle than the jurisprudence of any of the Justices does.
1.28.2009 2:18am
OrinKerr:
Mahan,

It has been a long time since a regular commenter treated me so shoddily: I think you are being completely and utterly ridiculous. OF COURSE I don't care about the issue: I don't follow this area of law, and I really don't know much about it. While I tend to think I suport this law, I really have no strong feelings about it: If the law went the other way, that would be fine with me, too. There are tens of thousands of questions of federal law out there, and this one is one that I just don't care about.

More broadly, your comments in this thread have been consistently obnoxious and nasty: It has been a long time since I have seen anything like it, and it's tremendously disappointing. In light of that, I would prefer if you would stop commenting in my threads.
1.28.2009 2:29am
OrinKerr:
Mahan,

Just to point out some of the silliness in this thread, when I wrote:
Anyway, I personally support the legislation [overturning the decision], although I am not expert in the issue and I only reached that decision earlier today when reading some of the press coverage of the question and it seemed like a pretty good idea. I have no idea which view is more persuasive as a statutory matter in the Ledbetter case: Seems like a really hard issue to me, and I gave it the 30 minute review instead of the 5 hours I would have needed to really have a view on it. (I hope that is okay.)
You then responded:
I'm not trying to make this personal, and I don't know you well enough to say you fall into this category, but there are plenty of Republicans conservatives who pretend to support the Court's decision solely on legal grounds when they really support the outcome on policy grounds.
It seems to me that after saying that I had "no idea" which view was more persuasive in the case, but that I didn't like the outcome as a matter of policy, it's pretty weird to then speculate that I might be someone "who pretends to support the Court's decision solely on legal grounds when they really support the outcome on policy grounds." I mean, I neither support it on policy grounds nor on legal grounds: Why on earth would you then suggest that I am possibly lying about reasons why I support the decision? And that was after you seemed to demand a list of all the politicians I have voted for that have ever taken a position on the issue, whether known to me or not. I mean, it's just extremely weird.
1.28.2009 3:00am
hattio1:
Professor Kerr,
Are all the critics in your dreams such dumb-asses? It's not that I disagree with your main point that the criticism of the Roberts Court was over the top on this one case. It's that the evidence for an activist court, even focusing on this one case, isn't quite as terribly thin as you say. I mean the critic couldn't even rationally describe the dissent and the effect of the new law.
1.28.2009 3:19am
Al Maviva:
How about an admission from the Republicans conservatives here that you guys actually opposed the new legislation?

That's right Mahan. I personally felt this way, strongly. From the start of the campaign season, I was out there hectoring candidates about their position on this act. It was tough. Day in and day out on the campaign trail, following candidates, trying to get my question heard: "Are you going to help us keep Lilly Ledbetter down? Or are you going to stick it to the man?"

You may even remember having seen me, Mahan, caught on videotape in a prominent incident in the campaign, asking the police, "Please, sir, do not taser me!" They only reason they tasered me is that I had the temerity to put a candidate on the spot about whether the candidate, if elected, would veto the Lilly Ledbetter Act.

Oh, how our Republican conservative hearts have burned with desire to keep women in their place for the last 19 months. We've had meetings about this, conferences... the centrality of opposing the Lilly Ledbetter Act to the existence of the conservative movement cannot be overstated.
1.28.2009 8:12am
krs:
Are all the critics in your dreams such dumb-asses?

hattio, the dream critics sound a lot like the real critics.

It could be that most non-lawyers are so ignorant of how the government works that it would take too much column space to explain what the Ledbetter decision is and isn't, so people who speak publicly about it explain it as if the Supreme Court just chose the result it wanted--5 Justices like corporations and gender discrimination and 4 Justices like "justice." End of story. Isn't the Roberts court evil?

Or it could be that people like Pelosi and others who've spoken out against the decision think that either (1) the statute is perfectly clear in favor of Ledbetter's interpretation, or (2) judges are aware that Congress can't "fix" everything, and they construe ambiguous statutes according to their political preferences for particular classes of litigants rather than according to some good faith effort at using neutral principles to arrive at the result... and they do this because they know that Congress can't "fix" everything and some hard-fought legislative compromises wouldn't survive if people tried to reenact them.

But statutory interpretation and debates about the role of the judiciary are just too complicated if you're only out to score political points and rile up the masses.
1.28.2009 8:43am
Sarcastro (www):
And then our Black Robed Tyrants totally made Congress unconstitutional, right? I'll bet they used Wickard v. Filburn to do it too! An' then they repealed the 19th Amendment.

See, dreams are symbols. In this case, I think Orin was unconsciously plotting about how hysterical he could make the internets.
1.28.2009 8:52am
Snaphappy:
Orin:

Comparatively speaking, how do you think the over-the-top-ness of the Ledbetter criticism compares to the over-the-top-ness of the Kelo criticism? Or were the Kelo histrionics entirely justified?
1.28.2009 8:55am
Neo (mail):
Is it safe to assume that Congress exempted itself ?
1.28.2009 9:08am
pintler:

Yes in 2000, no in 2004. Can you explain to me what that is supposed to signify?


That you learn from your mistakes?

[Mea maxima culpa; the devil made me do it. I will endeavor to help several old ladies across the street today as penance.]
1.28.2009 9:09am
ERH:
With all due respect Prof. Kerr the outrage is based on the gymnastics the majority used to conclude that paying Ledbetter less was not and "employment practice" and force a comparison with Morgan. Any rational observer of this would conclude that each time the company generated a discriminatory paycheck they were in fact committing a discreet action sufficient to trigger the act.
1.28.2009 9:20am
Don Meaker (mail):
May I helpfully suggest that the entire case and law is the worst kind of legislative meddling, resulting in judicial meddling. In a free society, in a productive economy fair wages are set by mutual agreement between employee and employer, with a market which provides alternatives. I have left a job for a pay cut, and left a job for a pay raise. This is a complex and uncertain process (How do I know when I set your wages how productive you will be next week?) The employee agreement to continue working means that the wage was not discriminatory. Having a court intervene years later, with a decision based on "permitted evidence" is unjust, though it may be legal.

The whole thing strikes me as welfare for the Bar.
1.28.2009 9:25am
Joseph Slater (mail):
This thread has gotten a lot nastier than I would have expected, so I will try to make a serious, substantive comment in a civil manner.

Criticisms of _Ledbetter_ are best understood in the context of the Supreme Court narrowly interpreting employment discrimination laws numerous times in the last couple of decades, prompting Congress to amend the laws. Some Supreme Court decisions in the 1980s prompted the 1991 Civil Rights Act, which amended Title VII by, among other things, specifically overruling those cases (see e.g. Wards Cove). More recently, the Americans With Disabilities Act was just amended to overturn some Supreme Court cases which narrowly interpreted that law (see, e.g., Sutton). And then came Ledbetter, which again prompted Congress to amend Title VII.

So, while I still think Orin's original post was pretty amusing, if we really want to debate the serious underlying issues, we should understand that critics of Ledbetter were not just concerned about the Roberts court, but rather were concerned more broadly about the fact that this makes three times in less than two decades that Congress has felt the need to amend employment discrimination laws in response to defendant-friendly Supreme Court decisions. So, there was a "here we go again" feeling that went beyond Ledbetter itself.

Now I suppose one could say that in all these cases, the Court got the existing law right, and hey, Congress felt differently about what the law should be, then amended it, so what's the problem? But I think critics have a pretty decent argument that in at least most and arguably all of these cases, the Court got the existing law / statutory interpretation wrong, and it is worth being concerned over the fact that the other two branches keep having to step in and correct these mistakes -- which always seem to favor one side.
1.28.2009 9:33am
Letalis Maximus, Esq. (mail):
Oh, I don't know. I'm pretty conservative, and I don't care for the result. But then, I also think 180 days is pretty skimpy. And it is obvious that an employer is going to try and conceal any wrongdoing or nefarious actions. And why shouldn't the statute of limitations on pay discrimination essentially work just like the one on trespass?

I haven't read Lebetter (and ain't gonna), but it does strike me as just a little stingy of the Court (and it was 5-4) to not follow the standard practice of "notice" as is done in nearly all other statute of limitations situations. Sure, that creates all kinds of fact issues for a trial court to resolve, but isn't that kind of, you know, the trial court's job?
1.28.2009 9:36am
TerrencePhilip:
If the Equal Pay Act would have allowed Ledbetter to pursue the claim she wanted, what is the purpose of this legislation?

From the opinion and oral argument, it sounds like Ms. Ledbetter's remedy lies in malpractice against her lawyers, who dropped her Equal Pay Act claim.
1.28.2009 9:48am
Visitor Again:
Many of the stories on this linked list support the proposition that a lot of people considered the Ledbetter case extremely important. I've seen many stories in the media reflecting the same thing. Ledbetter's name is known in a huge number of households.
1.28.2009 9:52am
Just Dropping By (mail):
My reaction is the same as Letalis'. I personally would support repealing the underlying law altogether, but I don't see how anyone familiar with normal rules of statutory interpretation can, with a straight face, claim that Ledbetter wasn't an "activist" decision. The general rule is that statutes of limitation are to be narrowly construed and that statutes of repose are especially disfavored. Thus statutes of limitation are to be interpreted in favor of preserving claims and courts should not read statutory provisions as statutes of repose unless they are clear and unambiguous. The Ledbetter court appears to have gone out of its way to take the most aggressively anti-plaintiff interpretation of the statute, contrary to the normal rule.
1.28.2009 10:07am
David M. Nieporent (www):
Letalis: no issue of "notice" was before the court. Ledbetter's attorney could have argued for a "discovery rule," but chose not to do so. Just as he chose not to argue an Equal Pay Act claim. She should be blaming him, not the Supreme Court.
1.28.2009 10:11am
Dissenting Justice (mail) (www):
Would you forfeit that procedural right if you discovered that your employer discriminated against you in terms of salary? Probably not. The case was bad (I do not need to use the hyperbole of youth) because the rule probably would have precluded a large number of pay equity cases. The statute, however, does not disturb the underlying substantive law in this area which makes it fairly tough to prove a case of unlawful discrimination. A separate measure on that issue passed in the House but was tabled in the Senate.

As for fairness to employers, I have read a lot of "scarecrow" articles that blindly suggest that plaintiffs will game the system and wait to sue and collect a windfall in damages. Not only does empirical research fail to demonstrate that civil rights plaintiffs engage in such maneuvering, but the statute (pre- and post-Ledbetter) limits recovery of backpay to just two years.

A "discovery rule" could have provided an alternative approach. By refusing to include this in the legislation, Congress has shifted the cost of litigating questions of reasonableness away from the plaintiff and to the defendant. Although the statute does not establish a discovery rule, doctrines such laches and estoppel, which are applicable in this context, utilize "reasonableness" tests to judge the timeliness of a complaint on grounds of equity.
1.28.2009 10:16am
ShelbyC:

I don't see how anyone familiar with normal rules of statutory interpretation can, with a straight face, claim that Ledbetter wasn't an "activist" decision.


Easy. Why would a statue use the same SOL clause to create a situation where it tolls in 180 days when:

1. You fire someone because of here gender.
2. You refuse to hire someone because of her gender.
3. You give someone and unequal rasie because of her gender and finds another job

But it hasn't tolled 30 years later if she stays at the same job?

Maybe it makes sense to distinguish between the two, but wouldn't you do it explicitly?
1.28.2009 10:30am
David M. Nieporent (www):
Prof Slater: you appear to be arguing that the fact that the "other two branches" overturned this decision (yes, Whit, I know that's not technically accurate) illustrates that the Court got it "wrong.". Presumably, therefore, you would argue that if those other branches refused to overturn it, then you would conclude that the Court got it right.

But isn't that exactly what happened just a year or so ago? An attempt to overturn the decision failed.
1.28.2009 10:32am
Snaphappy:
"Why would a statue use the same SOL clause to create a situation . . . "

It occurs to me that "SOL" can refer both to "statute of limitations" and, more colloquially, "shit outta luck." At times, as above, it might not be obvious from the context which meaning was intended.
1.28.2009 11:03am
Thales (mail) (www):
Orin, that was a pretty hilarious dialogue. Stoneridge is a much better candidate for an outrageous, seemingly nakedly political decision by the Roberts Court, where the majority's policy arguments were poorly written and apparently cut and pasted from the Chamber of Commerce amicus brief. But still nothing to get in a twist about.
1.28.2009 11:27am
byomtov (mail):
Orin,

I'm not sure I follow your argument here. You seem to be saying that Ledbetter was no big deal because Congress quickly changed the law. But why does that matter at all?

That an extreme and unreasonable statutory interpretation is overturned by Congress does not change the fact that the interpretation was extreme and unreasonable. (I'm talking about court decisons in general here, not specifically Ledbetter)
1.28.2009 11:43am
Dissenting Justice (mail) (www):
Kingsley Browne -- In my opinion there are many problematic aspects of the Ledbetter ruling. And I also believe that the statute reflects a sound exercise of judgment by Congress and the Executive.

First, with respect to the "parade of horribles" arguments that opponents frequently make, the history of litigation in this setting does not support the claim that applying the paycheck formula will lead to onerous and malicious litigation. Lower federal courts and most state courts had already applied this rule in antidiscrimination cases, prior to the Ledbetter ruling.

Furthermore, the paycheck rule is simply a specialized application of the broader remedies principle that resets the statute of limitations for "continuing violations." And while remedies lawyers and scholars continue to debate the fairness of this doctrines, the general application of the rule that the Ledbetter statute reinstates undermines the arguments that treat the legislation as a gross departure from principles of fairness.

I also believe that you and other opponents of the legislation are too dismisive of laches, estoppel, and other defenses that can bar stale claims. Many defendants lose when they assert these defenses because they often invoke them as a part of a "kitchen sink" strategy. But if a defendant can demonstrate that plaintiff has "gamed" the system or that evidentiary prejudice resulting from an unreasonable delay would occur, then the defendant will have a strong argument that the defenses should apply.

In the absence of any unreasonable, intentional delay in bringing suit, a plaintiff suing after years of covert discrimination will occupy the same position as any other victim of "fraudulent concealment." If defendant hides its wrongdoing, equity estops the assertion of the statute of limitations. Longstanding equity principles preclude the operation of "timeliness" defenses when the defendants concealment of the wrong has caused the delay. Opponents to the Ledbetter legislation do not pay enough attention to this doctrine.

Congress has made a policy decision that places a burden on defendants either to refrain from discrimination, to disclose salaries, or to absorb the cost of arguing that plaintiff should have sued earlier. I suspect that most courts would agree that the policy passes the minimum rational basis; it is simply the product of a the majoritarian political process. Bush threatened to veto the legislation, and it failed in Congress. Now, an augmented Democratic majority and Democratic president have spoken. In the absence of impermissible procedural unfairness, I am comfortable with the outcome.
1.28.2009 11:46am
OrinKerr:
I'm not sure I follow your argument here. You seem to be saying that Ledbetter was no big deal because Congress quickly changed the law. But why does that matter at all?

Why does that matter to what?
1.28.2009 11:51am
ShelbyC:

It occurs to me that "SOL" can refer both to "statute of limitations" and, more colloquially, "shit outta luck."

Works either way. Why are you SOL when you're fired or not hired, but not if you just get a smaller raise?
1.28.2009 12:02pm
Hans Bader (mail) (www):
The above summary of the Ledbetter decision is perhaps unfair to the Supreme Court, which did not adopt a rigid 180-day deadline for all pay discrimination claims.

Ledbetter DID suspect for years prior to suing that she was underpaid, according to her deposition (contrary to what some uninformed newspaper editorials have said), and according to a law journal article by prominent employment lawyer David Copus.

And she was sabotaged by her own lawyer, who stupidly pressed her claim on appeal only under Title VII (which has a short deadline) rather than the Equal Pay Act (which has a longer deadline -- usually 3 years -- and perhaps different accrual rules). He admitted to the Supreme Court that that was a mistake.

The Supreme Court explicitly noted that she could have sought to sue under the Equal Pay Act instead, and it did not impose a rigid deadline, since equitable doctrines like tolling and estoppel continue to exist to suspend the statute of limitations in some cases.

The newspapers used to let me point this out (see my New York Times web-only letter to the editor in early 2008, making this point), but they then refused to publish my letters making this very same point, after Obama began making the Ledbetter case a campaign issue (in Virginia, for example, the state democratic party sent out two campaign mailers distorting the facts of the Ledbetter case).

A cynic would say that the newspapers were in the tank for Obama, and did not want to let truth stand in the way of his getting elected.

I explained this all in a January 14 blog post at OpenMarket.org:

www.openmarket.org/
2009/01/14/
the-paycheck-fairness-act-equal-pay-baloney-from-the-press/

The Paycheck Fairness Act: Equal Pay Baloney From the Press
by Hans Bader
January 14, 2009 @ 3:23 pm

"News" stories on legislation often read like lazy summaries of press releases put out by the bill's sponsors. That's particularly true for so-called "equal pay" legislation, even if it would lead to inequities and frivolous lawsuits.

The Gannett News service is claiming that the controversial Paycheck Fairness Act, which passed the House late last week, simply "elevates the status of gender-based pay discrimination lawsuits to the same level as lawsuits filed by those claiming discrimination based on race, age, or disability." That echoes press releases by the bill's sponsors.

But it's not true. The bill would pressure employers to pay employees in predominantly-female jobs with pleasant working conditions the same as employees in predominantly-male jobs with unpleasant working conditions. Moreover, it would allow people alleging gender-based discrimination to recover damages unavailable to people facing racial, age, or disability discrimination, such as uncapped punitive damages for unintentional "disparate impact" "discrimination" (where a neutral employer practice negatively impacts more women than men, or more minorities than whites).

Federal civil rights law has never permitted punitive damages for unintentional discrimination. It did not permit any punitive damages for most forms of discrimination until 1991, and since then, has limited compensatory and punitive damages in most cases to $300,000. But Gannett News wrongly claims that the Paycheck Fairness Act is simply putting gender discrimination on the same footing as other forms of discrimination by eliminating "the cap on punitive and compensatory damages that has been in place since the early 1990s." See Brian Tumulty, Clinton's Last Hurrah: Women's Pay Fairness, Gannett News, Jan. 13, 2009.

Editorials pushing "pay equity" bills are even worse. They contain blatant errors about Supreme Court's 2007 Ledbetter v. Goodyear decision on equal pay, which held that a 180-day deadline applied to some pay discrimination claims brought under Title VII of the Civil Rights Act (a longer deadline applies under other laws, such as the Equal Pay Act, which usually gives employees three years to sue).

One recent editorial claimed that Lilly Ledbetter was not allowed to sue more than 180 days after her first unequal paycheck even though "she did not know she was being discriminated against until near the end of her career when she sued." Another claimed that under the Supreme Court's Ledbetter ruling, "any employer that could hide discrimination for six months could get away with it."

In reality, as leading employment lawyer David Copus points out, Ledbetter's claim was rejected only because she waited for years after suspecting discrimination to sue. See David Copus, "Pay Discrimination Claims After Ledbetter," Defense Counsel Journal, Volume 75, page 300 (Oct. 1, 2008).

As Copus notes, "Ledbetter admitted at her deposition that 'different people that [she] worked for along the way had always told [her] that [her] pay was extremely low.' She recalled that her manager told her in 1992 that her pay was lower than that of other Area Managers, and that by 1994 or 1995, she had learned the amount of the difference. In 1995, Ledbetter told her supervisor that she 'needed to earn an increase in pay' because she 'wanted to get in line with where [her] peers were, because . . . at that time [she] knew definitely that they were all making a thousand [dollars] at least more per month.'" Yet she waited to sue until shortly before she retired, and after the supervisor she accused of discrimination died!

Given Ledbetter's tardiness and longstanding knowledge that she might have been discriminated against, her lawyer didn't even claim that she could take advantage of the Supreme Court's exceptions to the deadlines for workers whose employers conceal evidence of discrimination, leaving them unaware of discrimination, such as "equitable tolling" and "estoppel."

But in spite of that, the Supreme Court went out of its way to leave such exceptions to the deadline intact, by noting that "Ledbetter should have filed an EEOC charge within 180 days after each alleged discriminatory pay decision was made and communicated to her.'" The Supreme Court also pointedly noted that the plaintiff could have sought relief instead under the Equal Pay Act, which has a three-year deadline for suing (the plaintiff's lawyer admitted to the Supreme Court that he erred by dropping her Equal Pay Act claim!). It certainly did not rule, as the Los Angeles Times claimed, that "any employer that could hide discrimination for six months could get away with it." See Editorial, "The Lilly Ledbetter Fair Pay Act Is Back," Los Angeles Times, Jan. 10, 2009.

But Congress is now on the verge of passing a bill that would essentially eliminate the deadline for suing in pay discrimination cases, the Lilly Ledbetter Fair Pay Act. The bill passed the House on January 9, after supporters falsely claimed that the Supreme Court had imposed a rigid, 180-day deadline for bringing discrimination claims.
1.28.2009 12:03pm
Joseph Slater (mail):
Prof Slater: you appear to be arguing that the fact that the "other two branches" overturned this decision (yes, Whit, I know that's not technically accurate) illustrates that the Court got it "wrong.". Presumably, therefore, you would argue that if those other branches refused to overturn it, then you would conclude that the Court got it right.

But isn't that exactly what happened just a year or so ago? An attempt to overturn the decision failed.


David:

First, please call me Joe.

Second, no, I don't mean to say that just because a bill passes that reverses the effect of a decision interpreting a statute, that necessarily means the court got it "wrong." As with most Supreme Court cases, in all three of the instances in which Court rulings on employment discrimination law have been changed by Congress, there is a plausible reading of the statute that favored the Court's interpretation. I personally think the better interpretation was the side that lost in Court and prevailed in Congress. But I agree with you that the fact that the side prevailed in Congress doesn't prove that.

My point, though, was simply this. Critics of the Ledbetter decision were not just reacting in frustration to that one case, but to a series of cases that, close as they may have been on the merits, all came down on side, creating rules so defendant-friendly that Congress -- and in the case of both the 1991 CRA and the very recent ADA amendments, Republican presidents -- felt it necessary to enact laws reversing the cases.

So, rather than seeing an "over-reaction" to Ledbetter alone, my point was to understand that the critics of that case were, justifiably, feeling, "here the court goes again," taking the narrowest, most defendant-friendly interpretation plausible.

Finally, I think in general that the legislature and executive passing a law to reverse the effect of a decision is better evidence that at least those folks thought the court "got it wrong" than the legislature and executive not passing such a law is evidence that the court "got it right." That's because inertia, inattention, and shifting priorities can all explain the failure to pass a law, while actually passing a law requires a lot of people to be on board and motivated at the same time. But my opinion on this is not necessary to my broader point about the reaction to Ledbetter.
1.28.2009 12:13pm
JP_ (mail):
Prof. Kerr,

This sentence in your discussion is inaccurate: "But she didn't find out that she had been underpaid until years later."

Plaintiff believed the performance reviews were discriminatory early on, and realized that the reviews affected her pay. However, she did not sue until several years later, after the allegedly discriminatory supervisor had died. (This is conceivably coincidental; I don't know. But it is important.)

The Ledbetter majority left open the question of whether to apply a discovery rule (i.e., whether to toll the statutory limitations period where the employee reasonably did not learn of the alleged discriminatory action until later).
1.28.2009 12:52pm
FWB (mail):
Let's see. I'm an employer who has the RIGHT to employ whomever I choose at whatever salary I offer. IF the employee opt to accept my offer and take the job, then a contract it made. The employee always has the option to find another job. Now big bad government comes along and interferes with my freedom of choice, my freedom to operate my business in a manner I choose (so long as what I do does not harm others without their permission). What a great place! Government regulation impoverishes more people in the world than does any other factor.

The government needs to F.O.
1.28.2009 1:54pm
1Ler:
You know, it's possible for a Supreme Court decision to be wrong without being "extreme and unreasonable." Bazemore pointed one way, Morgan pointed the other, and the text arguably leaned toward the "unfair" outcome.
1.28.2009 2:04pm
theobromophile (www):
Isn't some of the policy issue about what a good statute of limitations is, not about whether or not women can/should be able to sue for pay discrimination? For example, a five-year SOL may make a lot of sense, in terms of providing a sufficient amount of time for someone to learn of discrimination and sue on it, but will also ensure that businesses - which go through many transformations over the years - can limit their exposure for harm that occurred decades ago.

That all said, I think that some of Prof. Kerr's point was that a lot of "conservative judicial activism" can be repaired through the clearer writing of a statute, while liberal judicial activism (Roe, etc) cannot be changed without a constitutional amendment.
1.28.2009 2:21pm
Dilan Esper (mail) (www):
I think you and I disagree at a very basic level on the nature of the debates over judicial activism and the Roberts Court. In my experience, when critics of the Roberts court say that the court is engaged in extreme activism, they mean that its decisions are obviously following conservative politics rather than the law. The claim is of willful ignorance of legal principles in favor of extreme conservative politics. To the extent a case is really really hard, though, that claim becomes rather hard to make: If a case is a toss up, it's hard to say that a decision is ignoring the law.

Fundamentally, I don't think Lebetter is a hard case at all, and that's why I think the Roberts Court defenders are full of it.

The Civil Rights Act is a remedial statute with a remedial purpose. Obviously, the purpose of any limitations period in it cannot be to ensure that an employer who intentionally covers up wage discrimination will be able to get away with it.

Anyone who reads the statute differently is OBVIOUSLY motivated by a hatred for employment discrimination laws, either because they don't believe in civil rights or because they simply don't like government imposing this sort of regulation of business. You don't read statutory language so contrary to its purposes otherwise.
1.28.2009 2:39pm
Hans Bader (mail) (www):
Ledbetter knew quite well of the pay disparity that she years later alleged constituted discrimination, and chose not to file an EEOC complaint at that time despite having that knowledge.

Her lawyer specifically did NOT allege any "intentional cover-up," which would have been a basis for an exception to the deadline (equitable tolling or estoppel).

The limitations period didn't enable her employer to "get away" with anything, it just prevented Ledbetter from waiting to sue until shortly before she retired, after the supervisor she accused of discrimination had died and could no longer defend himself (which prejudiced her employer, and led to it losing at the trial level).

Even so, Ledbetter might have been able to get away with the delay if her lawyer had just had the sense to sue under the Equal Pay Act, which has a longer deadline (3 years) and perhaps different accrual rules.

Proof of everything I have said above can be found in my blog post yesterday at OpenMarket:

White House Distorts Court Ruling in Ledbetter Case
by Hans Bader
January 27, 2009 @ 1:19 pm
www.openmarket.org

The White House is distorting the facts of the Supreme Court's Ledbetter v. Goodyear decision. In that case, the Supreme Court enforced the 180-day deadline for bringing pay discrimination claims contained in the federal discrimination law with the shortest deadline, Title VII. (Other laws, like the Equal Pay Act, have much longer deadlines, like 3 years).

The White House claims that "The Court ruled that employees subject to pay discrimination like Lilly Ledbetter must file a claim within 180 days of the employer's original decision to pay them less . . . even if the employee did not discover the discriminatory reduction in pay until much later (check out Justice Alito's arguments in the Court's opinion)."

This is misleading, and perhaps knowingly so, since the White House links to the very court decision it distorts. First, the Court never said there was a rigid deadline that bars claims by employees who "did not discover" discrimination "until much later." Ledbetter never argued that the deadline should be suspended based on her employer concealing discrimination against her, because she in fact knew for years about the pay disparity she later sued over. If she truly had been in the dark about the alleged discrimination, she could have sought to take advantage of exceptions to the deadline that suspend it, like waiver, estoppel, and equitable tolling, under the Supreme Court's decision in Zipes v. Trans World Airlines, 451 U.S. 385, 398 (1982). But she never made that argument, because, as she testified in her deposition, she had been told many years earlier that she was being paid less than the men she later claimed ought to have been paid the same as her.

Nor did she argue that the outcome of her case would have been changed if the Supreme Court recognized an even broader extension to the deadline for employees who are unaware of the discrimination against them, the so-called discovery rule. As the Supreme Court specifically noted in footnote 10 of its opinion, "we have previously declined to address whether Title VII suits are amenable to a discovery rule. . . .Because Ledbetter does not argue that such a rule would change the outcome in her case, we have no occasion to address this issue." In short, since Ledbetter had long known of the facts underlying her discrimination claim, relaxing the deadline for employees who "did not discover" the discrimination until much later would have done her no good.

Thus, it is wrong for the White House to suggest that the Supreme Court sought to bar claims irrespective of whether "the employee did not discover the discriminatory reduction in pay until much later."

Second, the Supreme Court expressly noted that the plaintiff could have pressed her claim instead under the Equal Pay Act, which has a longer deadline for suing (usually 3 years) and perhaps more generous accrual rules. But her lawyer foolishly failed to preserve that claim, which was a mistake, as he admitted to the Supreme Court. The Supreme Court responded by noting that "Petitioner, having abandoned her claim under the Equal Pay Act, asks us to deviate from our prior decisions in order to permit her to assert her claim under Title VII."

The Obama campaign and state democratic parties spent much of the 2008 election season attacking the Supreme Court for supposedly creating a rigid 180-day deadline for pay discrimination claims. Those claims were false.

The fact that the Supreme Court rejected Ledbetter's claim as untimely should not have been a shock to anyone, given that she waited until shortly before she retired to sue, after the supervisor she accused of discrimination had died.
1.28.2009 2:51pm
methodact:
Yeoman's work, Professor. Kudos.
1.28.2009 3:02pm
kjnmdls:
1Ler is right.

Indeed, Bazemore was the only case that suggested the opposite outcome. It was distinguished on the ground that the pay system was facially discriminatory, whereas in Ledbetter's case, it wasn't (nor does Ledbetter assert that it was).

By contrast, Ledbetter's "continuing violation" theory had to contend with the Evans/Ricks/Lorance/Morgan line of cases and Machinists v. NLRB. As Lorance emphasizes, "[t]he continuing violation theory is contradicted most clearly by two decisions, Delaware State College v. Ricks, 449 U.S. 250 (1980), and United Air Lines, Inc. v. Evans 431 U.S. 553 (1977). . . . 'even though one of the effects of the denial of tenure -- the eventual loss of a teaching position -- did not occur until later[]' . . . [w]e concluded that '[t]he proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful.'" 490 U.S. 900, 906.

The majority's outcome squares better with the bulk of precedent, and is hardly the spectacularly unreasonable opinion it is made out to be. Alito is a careful parser in statutory cases, and is anything but "extreme."
1.28.2009 3:12pm
Snaphappy:
Hans,

Please do us the kind favor of linking to things you write elsewhere rather than reposting them in their entirety here.
1.28.2009 3:33pm
Tritium (mail):
What ever happened to freedom to contract. So, just because someone didn't negotiate very well, all of a sudden discrimination was a factor? What about previous pay from last employer, is that not a factor in determining a persons wage?

Is an employer required to disclose contracts of other employees currently employed at the company?

The problem with Discrimination laws is they're written to protect a specific group of people, and causes there to be special consideration that is discriminatory to non-minority people. If you want to prevent discrimination, require due process in employment termination. If the company's losing money... That's reasoning is acceptable. Have an reason, backed by documentation that meets certain Courteous Human Resource Practices.
1.28.2009 3:58pm
LM (mail):
ShelbyC,

You seem to be using "toll" backwards. (It means "suspend," not "end.")
1.28.2009 3:59pm
oenopion (mail):
I am not a lawyer so pardon what may be to those who are my obvious ignorance. By making this law apply retroactively to May 28, 2007, has not Congress created an ex post facto law? From what little research I have done today it seems that the only exceptions to the plain wording of the Constitution ("No... ex post facto Law shall be passed")that prohibits such laws are minor carve-outs involving criminal cases. Is what Congress has done here legitimate?
1.28.2009 4:26pm
byomtov (mail):
Orin,

Me: I'm not sure I follow your argument here. You seem to be saying that Ledbetter was no big deal because Congress quickly changed the law. But why does that matter at all?

You:Why does that matter to what?

To the question of whether the decision was an outrageous and extreme interpretation of the statute.
1.28.2009 4:39pm
Nick056:
kjnmdls,

I take your point -- Alito finds a powerful distinction vis-a-vis what constitutes facially discriminatory pay structure. Still, the holding and logic of Bazemore do not pose a great hurdle to reaching the conclusion that Lily Ledbetter's case involved facially discriminatory pay decisions: if she was denied an equitable raise because she was a woman, that is sex discrimination on its face, not made less so because it wasn't the fruit of a wideranging and clear pay structure.

Not only does Bazemore allow room for this reading, the emphasis placed upon finding as discriminatory and chargeable paychecks wholly tainted by prior discriminatory decisions is far more congenial to a ruling in favor of Ledbetter. Alito diminished both the relevance and the scope of Bazemore in implying that it made paychecks roted in discrimination chargeable offenses only when the discrimination at hand was some broad policy.

Don't you think his rendering of Bazemore on pages 16-17 describes its significance as rather more limited than Brennan would have assumed in writing the opinion?

Alito has to flatly deny that Ledbetter was the victim of a facially discriminatory pay decision to distinguish Bazemore. Ledbetter may not have asserted the existence of a facially discrimatory pay structure within Goodyear, but she was asserting a provable incident of facial discrimination, to be sure.
1.28.2009 6:02pm
Nick056:
Also, even if you're inclined to say that since Ledbetter is not a victim of a facially discriminatory pay structure, Bazemore does not apply, Gingsberg's dissent beginning on page 10 and carrying to page 13 does excellent work in arguing that a facially neutral pay system nonethless affected by discriminatory intent is not immunized under Title VII from challanges filed after 180 days. She makes this point persuasively by quoting from the 1991 Civil Rights Act written to mitigate the affects of Lorance -- another moment at which a SCOTUS interpretation of Title VII occassioned Congressional action and a rebuke. The language of the 1991 rebuke even implies that Congress felt the Court had misapplied Bazemore in interpretating the statute, and "generalizes" its result relating to paychecks as discriminatory acts. ("Each new paycheck constituted a distinct violation of Title VII.")

And now here we have a majority holding relying in part on Lorance and construing rather narrowly a decision whose result Congress expressly generalized in 1991. No surprise, Congress reasserted its already clear view and mitigated the affect of the Ledbetter holding. I think it's difficult to say the majority thought the matter of Congressional intent was very unclear when Congress specifically wanted to extend rather than limit the effects of a decision that the majority was inclined to limit rather than extend.

I don't mean to sound like one of those fellows who pops up in the professor's dreams -- but really. This decision in particular is at least Pretty Cruddy. Let's forget Congress's opinion of Title VII as it relates to Bazemore and construe Bazemore much more narrowly, and be surprised when Congress reasserts its already clear intention.

I'm not saying the SCOTUS doesn't reserve the right to put primacy on the statute rather than documents that go to legislative intent, but you have to have a very sour view of legislative intent to disregard passages of Congressional opinion so relevant and so clear.
1.28.2009 6:37pm
CheckEnclosed (mail):
Suppose Plaintiff A claims she was sexually harassed by her boss B for a period of two years ending ten years ago. B is now dead, and A claims that the soul-crushing effect of the harassment, and B's negative evaluations of her when she finally resisted him damaged both the actual quality of the work she was able to perform, and the employer's view of that work. A fell behind her peers and has never caught up. Each year, the employer's compensation committee evaluates the quality of work A produces and how much progress she has made, and as a result, A makes less money. B is dead, and for Title VII purposes sexual harassment is sex discrimination.

Does A now have 180 days since her last paycheck within which to sue her employer?
1.28.2009 8:38pm
Nick056:
Did B subject A to discriminatory evaluations whose effects altered her pay in the last 180 days?
1.28.2009 9:13pm
GatoRat:
What if B's last two evaluations were also terrible, independent of A. What if all the evidence is that A was simply a terrible employee. What if A wasn't fired solely because the company didn't want to deal with a frivolous lawsuit? What if the reason A didn't file a lawsuit while she was employees was so she could collect a nice pension?
1.28.2009 9:20pm
whit:

Prof Slater: you appear to be arguing that the fact that the "other two branches" overturned this decision (yes, Whit, I know that's not technically accurate) illustrates that the Court got it "wrong.". Presumably, therefore, you would argue that if those other branches refused to overturn it, then you would conclude that the Court got it right.

But isn't that exactly what happened just a year or so ago? An attempt to overturn the decision failed.



there is no inference that because congress changed the law, that the scotus got it wrong. if anything, the opposite.

so, the statement that congress "overturned" IS a really bad way to say it. courts overturn lower courts. legislatures RESPOND to courts, they do NOT overturn courts by changing the law.

it's more than semantical. it comes down to seperation of powers and an understanding of the difference between process and results based analysis.

courts often have to make very bad decisions because legislatures make bad laws.

heck, cops often have to make bad arrests because of bad acts by legislatures as well.

whether or not the scotus made the right decision, the REsULT was viewed as bad, so congress changed the law. NO overturning went on. response went on.
1.28.2009 9:32pm
David M. Nieporent (www):
And now here we have a majority holding relying in part on Lorance and construing rather narrowly a decision whose result Congress expressly generalized in 1991. No surprise, Congress reasserted its already clear view and mitigated the affect of the Ledbetter holding. I think it's difficult to say the majority thought the matter of Congressional intent was very unclear when Congress specifically wanted to extend rather than limit the effects of a decision that the majority was inclined to limit rather than extend.
This is mistaken. The holding did not "rely on" Lorance, even 'in part.' It merely cited Lorance as one of a series of cases which all interpreted Title VII the same way, as holding that the time for filing is triggered by the discriminatory act, not by the fact that one feels the effects of the discriminatory act. When Congress wanted to overrule Lorance, it did so narrowly, focusing on seniority systems; it did not overrule all the other cases which interpreted Title VII that way.
1.29.2009 12:26am
Nick056:
Whit -- all fine points. But here's a question: can the Court refer to Ledbetter as precedent if Congress has made clear that Ledbetter was decided contrary to the purpose of and intent behind Title VII and the Civil Rights Act of 1991?

It gets curiouser and curiouser. I'm a big fan of the notion that Congress doesn't decide cases, but I'm also a big fan of the notion that if Congress clarifies the purpose of and intent behind a law on the date the Court interpreted that law -- as they did here -- the Court would do well, for its own sake, to pay that some respect. So if Ledbetter has a precarious status as a binding precedent, is "overturned" such a total misnomer? Congress may have to leave its anatomy untouched, but they killed the whole of it outright: as a case, it's a perfectly intact corpse. If the Court uses it, they'll be seen as trying to raise the dead (and decided).

We're spltting hairs. I know. But hair has DNA, too.
1.29.2009 12:29am
whit:

Whit -- all fine points. But here's a question: can the Court refer to Ledbetter as precedent if Congress has made clear that Ledbetter was decided contrary to the purpose of and intent behind Title VII and the Civil Rights Act of 1991?



i have no idea. that's beyond my pay grade


It gets curiouser and curiouser. I'm a big fan of the notion that Congress doesn't decide cases, but I'm also a big fan of the notion that if Congress clarifies the purpose of and intent behind a law on the date the Court interpreted that law -- as they did here -- the Court would do well, for its own sake, to pay that some respect. So if Ledbetter has a precarious status as a binding precedent, is "overturned" such a total misnomer? Congress may have to leave its anatomy untouched, but they killed the whole of it outright: as a case, it's a perfectly intact corpse. If the Court uses it, they'll be seen as trying to raise the dead (and decided).



the problem is that what congress says when they "clarifies" may not have been what they meant when they wrote the law (obviously, more likely to be true if more members have been replaced etc.).

i am of the firm belief that congress needs to make real effort to write law that is NOT ambiguous and to ANTICIPATE challenges to the law such that they think "how would challenge X be handled. how can we say X and make it clear our intent is X etc."?

iow, congress has nobody to blame but themselves if they write laws with enough gray to be misinterpreted.

this isn;t like constitutional law where we are necessarily talking about at least somewhat broad principles, but where we can define stuff much better.

it is the duty of congress to do so. heck, imo it's the duty of congress to review old laws and see if any need change BEFORE they are "forced" to by court decisions that go against what they (claim) they meant.

legislation isn't quite like computer code, where you can put comments/remarks in the source code to explain to future programmers what you are trying to do, why you are defining variables as such, but there is plenty of room to write law that is transparent.

i can go through the RCW (our state legal code) right now and pick out several laws that are BEGGING to be rewritten because they leave so much open to interpretation that SHOULDN'T be.


We're spltting hairs. I know. But hair has DNA, too.


only the follicles.

congress gotta include the follicles . if they just write the shaft, they get the shaft.
1.29.2009 3:37am
Tritium (mail):
Couldn't the Attorney argue that the Constitution establishes the Supreme Court for the purpose of Justice, and Justice cannot be limited by statue, what is fixed in the Constitution? If a wrong was done, then Justice must prevail?
1.29.2009 10:17am
Tritium (mail):
And I should add that Congress is obviously incapable of a great many things, and understanding law seems to be prominate. No wonder the only job they can get after losing an election is as a lobbyist.
1.29.2009 10:20am
Tony Tutins (mail):

But it was a close call, and it stemmed from Congress's own incompetence in statute-drafting. The Court enabled Congress to get the proper political support to revise the statute as it sees fit.

1. Changing the statute does not help Lilly Ledbetter.
2. The statute was not revised, but clarified.

There were two ways to interpret the statute of limitations, and the Roberts Court picked the one that favored the giant corporation. Oddly enough, his dad was a plant manager for a giant corporation.

I agree with Obama that the Supreme Court could benefit from a diversity of backgrounds, to balance the effects of unconscious favoritism.
1.29.2009 10:36am
whit:

1. Changing the statute does not help Lilly Ledbetter.
2. The statute was not revised, but clarified.


it is not the job of the supreme court to "help" a person. it is their job to interpret the law.

CONGRESS can try to help people (not so much individuals, but groups... like people who suffer employment discrimination), but it's THEIR frigging job to write the laws to do that.


2. The statute was not revised, but clarified.



and i've read enough opining from legal expert from various political backgrounds and read the statute myself, and it's pretty clear that it was a close call. and that reasonable people can differ on interpretation. that's CONGRESS' fault because they didn't write a CLEAR law, so thus had to clarify it after the scotus was forced to rule on it.


There were two ways to interpret the statute of limitations, and the Roberts Court picked the one that favored the giant corporation. Oddly enough, his dad was a plant manager for a giant corporation.



ah.... guilt by association. what an intelligent legal argument (rolls eyes)

and again, as for helping lilly ledbetter. there are all sorts of ways to do that. the law failed her because the law was written poorly. there is NOTHI*NG to stop you or any advocacy group etc. in helping her. feel free. it is not the job of the scotus to HELP people. it is their job to rule on the law, and the often, in cases of badly written law, or just plain bad laws, that means the scotus' decisions will necessarily hurt people. that's a sad fact under the rule of law. the scotus are not a bunch of benevolent kings doling out "help". their job is the law, not making people feel good, or to give people stuff.
1.29.2009 3:02pm
Math_Mage (mail) (www):
Whit -- all fine points. But here's a question: can the Court refer to Ledbetter as precedent if Congress has made clear that Ledbetter was decided contrary to the purpose of and intent behind Title VII and the Civil Rights Act of 1991?


Of course. Just because Congress changed the premise in this specific case, so that the reasoning no longer applies to this case, doesn't mean that the same reasoning can't apply to other cases where the wording is the same as when Ledbetter was decided.
1.30.2009 2:48am
Math_Mage (mail) (www):
Tony:
1. Changing the statute does not help Lilly Ledbetter.
2. The statute was not revised, but clarified.


1. That's Congress's fault. They made a bad law, and it didn't have the impact they intended. I don't see why SCOTUS is implicated for ruling on the law as written.
2. To-ma-to, to-mah-to. The point is, they changed it to correct their own mistake. Again, SCOTUS is not implicated.

There were two ways to interpret the statute of limitations, and the Roberts Court picked the one that favored the giant corporation. Oddly enough, his dad was a plant manager for a giant corporation.


Yes. One judge is associated with a member of a giant corporation; therefore, the entire Court is rabidly pro-corporation and will ignore the law to favor them.

...except that the ruling makes perfect legal sense and doesn't require the invocation of guilt by association.

I agree with Obama that the Supreme Court could benefit from a diversity of backgrounds, to balance the effects of unconscious favoritism.


What are the past impacts of demonstrated favoritism? How do you weight "unconscious favoritism" against other qualifications like "years of experience" and "judicial integrity"? People have enough trouble with the conscious favoritism, with keeping the Court balanced between liberals and conservatives.
1.30.2009 3:00am

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.