H.R. 11, the Lilly Ledbetter Fair Pay Act of 2009, has passed the House and looks set to roll through the Senate and the post-January 20th Executive. So what was so wrong with the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007)?

First, the facts, as retold by Justice Ginsburg’s dissent:

Lilly Ledbetter was a supervisor at Goodyear Tire and Rubber’s plant in Gadsden, Alabama, from 1979 until her retirement in 1998. For most of those years, she worked as an area manager, a position largely occupied by men. Initially, Ledbetter’s salary was in line with the salaries of men performing substantially similar work. Over time, however, her pay slipped in comparison to the pay of male area managers with equal or less seniority. By the end of 1997, Ledbetter was the only woman working as an area manager and the pay discrepancy between Ledbetter and her 15 male counterparts was stark: Ledbetter was paid $3,727 per month; the lowest paid male area manager received $4,286 per month, the highest paid, $5,236.

Title VII requires that a charge of discrimination “shall be filed within [180] days after the alleged unlawful employment practice occurred.” 42 U. S. C. §2000e–5(e)(1).

Ledbetter filed her claim while still receiving unequal pay, but after the initial decision to pay her less.

Justice Alito wrote for the majority,

The EEOC charging period is triggered when a discrete unlawful practice takes place. A new violation does not occur, and a new charging period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination. But of course, if an employer engages in a series of acts each of which is intentionally discriminatory, then a fresh violation takes place when each act is committed.

The core component of a Title VII discrimination claim, Alito wrote, is the intent to discriminate, which had occurred far more than 180 days prior to Ledbetter’s filling, and thus her claim was not timely filed.

On the law, it’s important to note that, prior to the Ledbetter decisions most Courts of Appeal, and the Equal Employment Opportunity Commission itself, had interpreted an employer’s decision to continue paying at discriminatory rates to be a continuing discriminatory employment practice.

On the facts, Ginsburg summed it up well:

Ledbetter’s evidence demonstrated that her current pay was discriminatorily low due to a long series of decisions reflecting Goodyear’s pervasive discrimination against women managers in general and Ledbetter in particular. Ledbetter’s former supervisor, for example, admitted to the jury that Ledbetter’s pay, during a particular one-year period, fell below Goodyear’s minimum threshold for her position. Although Goodyear claimed the pay disparity was due to poor performance, the supervisor acknowledged that Ledbetter received a “Top Performance Award” in 1996. The jury also heard testimony that another supervisor—who evaluated Ledbetter in 1997 and whose evaluation led to her most recent raise denial—was openly biased against women. And two women who had previously worked as managers at the plant told the jury they had been subject to pervasive discrimination and were paid less than their male counterparts. One was paid less than the men she supervised. Ledbetter herself testified about the discriminatory animus conveyed to her by plant officials. Toward the end of her career, for instance, the plant manager told Ledbetter that the “plant did not need women, that [women] didn’t help it, [and] caused problems.” After weighing all the evidence, the jury found for Ledbetter, concluding that the pay disparity was due to intentional discrimination.     

Yet, under the Court’s decision, the discrimination Ledbetter proved is not redressable under Title VII. Each and every pay decision she did not immediately challenge wiped the slate clean. Consideration may not be given to the cumulative effect of a series of decisions that, together, set her pay well below that of every male area manager. Knowingly carrying past pay discrimination forward must be treated as lawful conduct. Ledbetter may not be compensated for the lower pay she was in fact receiving when she complained to the EEOC. Nor, were she still employed by Goodyear, could she gain, on the proof she presented at trial, injunctive relief requiring, prospectively, her receipt of the same compensation men receive for substantially similar work. The Court’s approbation of these consequences is totally at odds with the robust protection against workplace discrimination Congress intended Title VII to secure.

(citations omitted). H.R. 11 will fix that, amending Title VII to hold:

an unlawful employment practice occurs when:
(1) a discriminatory compensation decision or other practice is adopted;
(2) an individual becomes subject to the decision or practice; or
(3) an individual is affected by application of the decision or practice, including each time compensation is paid.