Propaganda About Discrimination

Even if a Supreme Court decision is correct and well-reasoned, it can still be overturned if the plaintiff’s bar comes up with good soundbites against it, as a Washington Post story today illustrates.

A case in point is the Supreme Court’s 5-to-4 decision in Ledbetter v. Goodyear, which held that the Civil Rights Act’s 180-day statute of limitations for discrimination claims means what it says, and that a plaintiff suing under that statute therefore has to file a complaint over pay discrimination within 180 days of the discriminatory decision that affected her pay. The plaintiff in that case unsuccessfully urged the court to hold that she could sue essentially forever, as long as she continued to draw a paycheck from her employer, if that paycheck was in some way affected by the allegedly discriminatory pay decision.

The Supreme Court justices were depicted as big meanies for ruling against the plaintiff, Lilly Ledbetter, because she was an elderly woman. Editorial cartoonists critical of the ruling drew simple-minded cartoons falsely depicting sexist justices joking about women on the bench to justify their ruling, although the Court’s decision, and the 180 day deadline, apply equally to plaintiffs of all races and genders. And “news” reporters falsely claimed, with no evidence, that the Court decided as it did because of the justices’ gender. Now, Congress is on the verge of overturning the decision to get rid of the deadline in pay discrimination cases, arguing that the Supreme Court was blind to the realities of sex discrimination.

Advocates of overturning the decision argue that pay discrimination claims are hard to bring within 180 days, since it takes a while for an employee to learn about what other employees of a different gender are being paid, and they may be right about that. But the law Ledbetter sued under nevertheless contained a 180-day deadline, and the Court had no right to rewrite the law.

More importantly, rewriting the law is unnecessary to prevent pay discrimination. That’s because there is another law aimed specifically at pay discrimination, that provides a longer deadline to bring suit: the Equal Pay Act, which has a three-year statute of limitations.

Under the Equal Pay Act, Ledbetter had three years to sue, not just 180 days. But for some reason, her attorney chose to sue instead under the Civil Rights Act, which has a short 180-day deadline. It was thus the fault of Ledbetter’s attorney — not the Supreme Court — that her pay discrimination claim failed. Yet now Congress wants to get rid of the deadline entirely for pay discrimination claims under the Civil Rights Act, rather than requiring plaintiffs to file a lawsuit within 3 years under the Equal Pay Act.

It is perfectly reasonable to require a plaintiff to file a lawsuit within 3 years. Allowing more time than that means that a supervisor falsely accused of discrimination in setting a plaintiff’s pay may die or otherwise become unavailable before the plaintiff sues, denying an innocent employer the ability to defend itself by putting the falsely accused supervisor on the witness stand.

And many discrimination plaintiffs have even more than three years to sue. 42 U.S.C. 1981 authorizes racial discrimination claims (including in pay) up to 4 years after the alleged act of discrimination. In some states, discrimination lawsuits can be brought up to six years after the alleged act of discrimination.

Yet news coverage of the Supreme Court’s decision in Ledbetter v. Goodyear at best overlooks this fact, and at worst falsely tells readers that because of the Supreme Court’s decision, pay discrimination is immune from challenge unless a complaint is filed within 180 days.