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Crying Wolf: Demagoguing About Discrimination

Yesterday, by a vote of 5-to-4, the Supreme Court actually enforced the 180-day statute of limitations contained in Title VII of the Civil Rights Act, dismissing an employee's claim that she had been subject to sex discrimination years earlier that affected her pay.

For enforcing the plain language of the statute, the justices in the majority were denounced by the dissent, which speculated that they were "indifferent to the insidious way in which women can be victims of pay discrimination."

Press accounts about the decision in Ledbetter v. Goodyear Tire and Rubber Co. have uncritically reported this allegation, without even noting that the majority didn't prevent the plaintiff from obtaining relief: Her inept lawyers and the plain language of the statute under which she sued did.

The majority pointed out that the plaintiff could just as easily have sued under the Equal Pay Act, which specifically bans sex discrimination in pay, and has a longer statute of limitations -- and broader definition of discrimination -- than the statutory provision that the plaintiff sued under. If she had done that, she probably would have won her lawsuit. But she didn't do that. Instead, she just sued under Title VII, alleging intentional discrimination.

The press, such as the Washington Post, didn't report that at all. Instead, they promote the dissent's spin that the majority was sexist, consisting of the same five justices who earlier allowed the federal government to prohibit partial birth abortions -- for which they were derided by the same dissenters for supposedly harboring "ancient notions about women's place in the family and under the Constitution." (Ancient notions apparently shared by most contemporary women, whom polls show support bans on partial birth abortion).

The Post also uncritically, and inaccurately, repeats the dissent's claim that the majority's decision "would apply to those alleging discrimination based on race."

But intentional racial discrimination is banned not just by Title VII, but also by another statute, 42 U.S.C. 1981, which has a much longer statute of limitations (four years versus 180 days) than Title VII.

So racial minorities can also sue for pay discrimination even after 180 days have passed, unless the discrimination they allege was unintentional. (Title VII, unlike 42 U.S.C. 1981, bans not only intentional discrimination, which is what ordinary people view as discrimination, but also certain race-neutral employment criteria that inadvertently exclude many more minorities than whites, such as an employer requiring a high-school diploma in an area where few minorities have them but most whites do. The plaintiff in Ledbetter alleged only intentional discrimination).

By contrast, the dissent's argument that a discrimination plaintiff can sue based on each paycheck she receives, if her current paycheck was somehow affected by discrimination in the distant past, would allow plaintiffs to sue based on discrimination that occurred decades before, even if the employer is innocent, the alleged discriminators have all died, and the employer no longer has access to any evidence that could vindicate it.

That is fundamentally unfair, and at odds with the whole purpose of having a statute of limitations. As employment law expert Ross Runkel has noted, the dissent's position is at odds with the Supreme Court's past precedents, which predictably led to the dismissal of the plaintiff's lawsuit. And as Professor David Bernstein notes, the dissent's argument is at odds with the way Title VII was designed by its framers.