With the passing of United States Supreme Court Justice Ruth Bader Ginsburg (March 15, 1933 – September 18, 2020) this country lost an irreplaceable and implacable advocate for the bedrock notion that every person regardless of their sex, race, national origin, disability or sexual orientation, or other unique or protected characteristic, should be treated equally under the law. In the employment context, a great example of Justice Ginsburg’s spirited pursuit of equality for all is found in her dissenting opinion in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007). This dissent helped to galvanize the later passage and signing into law of the Lilly Ledbetter Fair Pay Act which makes clear that pay discrimination claims on the basis of sex, race, national origin, age, religion and disability, accrue whenever a discriminatory pay decision or practice is adopted, or when a person becomes subject to the decision or practice, or when a person is affected by the disparate pay decision or practice, including whenever s/he receives a discriminatory paycheck
Lilly Ledbetter was one of a few female supervisors at the Goodyear plant in Gadsden, Alabama. She suspected she was getting fewer and lower pay raises than similarly situated male supervisors but had no proof until she received an anonymous note revealing the salaries of three of the male managers. After she filed a complaint with the EEOC, her case went to trial, and the jury awarded her back-pay and approximately $3.3 million in compensatory and punitive damages for the extreme nature of the pay discrimination.
The Court of Appeals for the Eleventh Circuit reversed the jury verdict, holding that her case was filed too late – even though Ms. Ledbetter continued to receive discriminatory pay – because the company’s original decision on her pay had been made years earlier. In a 5-4 decision authored by Justice Alito, the Supreme Court upheld the Eleventh Circuit decision and ruled that employees cannot challenge ongoing pay discrimination if the employer’s original discriminatory pay decision occurred outside of the statute of limitations period – which in Alabama was a mere 180- day period – even when the employee continues to receive paychecks that have been discriminatorily reduced.
Justice Ginsburg wrote the dissent and was so opposed to the majority’s opinion, that she read the dissent from the bench, a rare practice before the Supreme Court. In her opinion joined by Justices Stevens, Souter, and Breyer, Justice Ginsburg eloquently took issue with the logic, or lack thereof, of the majority’s decision:
The Court’s insistence on immediate contest overlooks common characteristics of pay discrimination. Pay disparities often occur, as they did in Ledbetter’s case, in small increments; cause to suspect that discrimination is at work develops only over time. Comparative pay information, moreover, is often hidden from the employee’s view. Employers may keep under wraps the pay differentials maintained among supervisors, no less the reasons for those differentials. Small initial discrepancies may not be seen as meet for a federal case, particularly when the employee, trying to succeed in a nontraditional environment, is averse to making waves.
Id. at 645.
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This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute’s broad remedial purpose. See supra, at 652- 654, 167 L. Ed. 2d, at 1007-1008. See also Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S. Ct. 2115, 104 L. Ed. 2d 733 (1989). (superseded in part by the Civil Rights Act of 1991); Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989) (plurality opinion) (same); 1 B. Lindemann & P. Grossman, Employment Discrimination Law 2 (3d ed. 1996) (“A spate of Court decisions in the late 1980s drew congressional fire and resulted in demands for legislative change[,]” culminating in the 1991 Civil Rights Act (footnote omitted)). Once again, the ball is in Congress’ court. As in 1991, the Legislature may act to correct this Court’s parsimonious reading of Title VII.
Id. at 661 (emphasis added).
And Congress did indeed act, culminating on January 29, 2009 with President Barack Obama signing into law the Lilly Ledbetter Fair Pay Act requiring employers to implement non-discriminatory pay practices and to maintain records needed to prove the fairness of their pay decisions. The passage of the Act was a victory emblematic of Justice Ginsburg’s long and illustrious career spent fighting for and insisting upon equality and justice for all under the law. RBG will be missed.