HR Daily Advisor (BLR)

Today's Tip - July 12, 2007

"The Supremes" Take Heat over Sex Discrimination Pay-Bias Case

By BLR Founder and CEO Bob Brady

The Supreme Court says that if you haven't filed a claim of sex discrimination in pay within 180 days of when it first happened, don't bother. Some call this good news for employers. Others have cried foul. Here's what our founder thinks.

America's Supreme Court justices are taking a lot of heat these days, and it has nothing to do with Washington's summer weather.

In early June they decided a sex discrimination claim involving a woman who, for decades, was paid less than men working the same job (Ledbetter vs Goodyear Tire & Rubber Company). The plaintiff, represented by the Equal Employment Opportunity Commission (EEOC), no less, offered pretty convincing evidence that bias was the reason for the difference, but the judges, on a 5-4 vote, threw the case out.

As is so often the case, the decision rested on a "technicality."

Title VII specifies a very short statute of limitations, 180 days, to file a discrimination complaint. But EEOC has always taken the position that in a pay discrimination case, the 180-day period begins anew with every substandard paycheck.

The employer argued, however, that the alleged discrimination occurred when a supervisor set her pay at a lower level decades ago. The woman's case was filed years after that act, so the game clock had run out long ago, an argument the justices bought. In the 5-4 majority's view, by delaying too long, the woman forfeited her right to a day in court.

The Court's sole female justice, Ruth Bader Ginsburg, opposed the decision. The usually taciturn Ginsberg then took the unusual step of reading her scorching dissent out loud from the bench, blasting her colleagues, saying the decision "overlooks common characteristics of pay discrimination."

Outrage follows

Outrage followed. Picking up Ginsberg's theme, many writers noted how difficult it is to know if you are paid less than someone else. (One New York Times Op-Ed piece advocated legislation to require employers to post everyone's salary, as a way of ensuring that people know and can sue in time!)

In Congress, several members promised to introduce legislation to undo the decision. Even the employer-sympathetic Business Week questioned the reasonableness of it all, (though BW's take was more along the lines of "what will happen if we encourage employees to spy to find out what co-workers are making?").

Is it reasonable?

Though it is often illegal to prohibit employees from talking about pay, few HR managers would relish the thought of everyone poking around in the payroll files and second-guessing every decision that is made. The idea of publishing everybody's pay would certainly not make our Top-10 list.

On the other hand, most will sympathize with the woman in this case. It looks as though she was victimized, first by a discriminatory appraisal, then by its perpetuation through years and years of lock-step pay increases. A lower court had determined that it wasn't fair, and the Supreme Court overruled only on the issue of timeliness.

Even so, I don't have a real quarrel with the Supreme Court's decision. Statutes of limitation originated from the need to eliminate "stale" claims. In this case, the original supervisor was dead and could not have been questioned. It violates the intention of the statute of limitations provision to leave the employer on the hook forever.

True, 180 days is a very short period, but on the other hand, Title VII's other provisions are very favorable to employees. The Supreme Court was tough, but the decision is clearly within the boundaries of the statute.

Not the end

The Supreme Court has spoken, but this won't be the end of the matter. For one thing, this case could have been brought under the Equal Pay Act, which does not have a 180-day limit (though it does limit damages). For another, the bloggers had barely started their buzzing before bills were introduced in Congress to change the law. We predict that Congress will soon pass an amendment to soften the effect of the decision.

I just hope that they don't do something counterproductive like ordering employers to publish everyone's salary. Now, that would not be a good thing! Anyway, that's my e-pinion. I'd love to hear yours. Use the Share Your Comments button or e-mail me at Rbrady@blr.com