It’s been twenty-four hours since I found out, and I still can’t believe it.

I expected the ban on partial-birth abortions to be upheld. I was hoping it wouldn’t be, but I thought the chances with the new make-up of the Supreme Court of it being struck down were slim at best.

But this….

Yesterday, the Supreme Court in all its wisdom essentially gutted the right of employees to sue over discriminatory pay. Well, five of them did, and that’s all that’s needed.

In Ledbetter v. Goodyear Tire, the Supreme Court stated that the six-month statute of limitations for bringing claims did not arise from discovery of the pay disparity, or from continuing discrimination, but from the date the discriminatory act — the original awarding of less pay for equal work — occurred.

Lily Ledbetter was originally paid the same as her male counterparts, but over time received smaller raises than they were. After 19 years, she was being paid $6,000 less than the lowest paid man at the same position. Performance, said Goodyear. (Performance? If she was so bad, why did you keep her around for 19 years?) Gender, said Ms. Ledbetter, and a jury agreed with her to the tune of roughly 200K compensatory and a whopping 3.3 million punitive damages.

Take special note of those punitive damages. We’re not talking about a minor mishap. Clearly what the tire giant did was outrageous enough to inspire a jury to try and send a message to Goodyear Corporation.

Too bad, said SCOTUS. She sued too late. It didn’t matter that they had been systematically paying her less than her coworkers for years, she had to have sued within six months of the first time they decided to pay her less than her male colleagues.

Talk about not living in the real world. A woman — or a black man, or an older person — may become aware of discrimination only after the statutory 180 days has run. According to this ruling, that woman (or black man, or older worker) is just shit out of luck, now, isn’t she (or he)?

This decision gives an employer a way out for years of discrimination. If future pay raises are based on pay decisions made earlier (i.e., when raises are percentage of wages), all an employer has to do is state that their current pay decisions are equitable and ignore the effects of old injustices.

As Ruth Bader Ginsberg pointed out — in a dissent read from the bench, which is usually reserved for opinions which the writer feels particularly strong about — pay discrimination is categorically different than discrimination in promotion or firing/hiring. Who works for a company, and what position they hold, is pretty much public knowledge, pretty quickly. As for who gets paid what….

Why, yes, my employer makes all of their salaries public — doesn’t yours? No? Well, actually, mine doesn’t either. I have no idea what my co-workers at the small nonprofit where I work make. I have never worked in place where information about other people’s salaries were readily available, or certainly not in close enough to real time to allow for a lawsuit under the reading of the statute that the idiots in the majority have adopted.

Ginsburg is right about something else — this paves the way for more discrimination lawsuits, not fewer: “Today’s decision counsels: Sue early on, when it is uncertain whether discrimination accounts for the pay disparity you are experiencing.” From a worker’s perspective, it’s a damned if you do, damned if you don’t scenario: without clear evidence that discrimination is behind the pay disparity, what lawyer will take the case? By the time the discrimination becomes established enough to be worth having a case, though, you are barred by the statute of limitations.

All of which will be quite good for employer/worker relations, I suppose. Not to mention productivity.

Ginsburg urged Congress to take action. I do too — and please contact your House members and Senators so we can fix this NOW.

It’s too late for Lily Ledbetter. But not for the rest of us.

This entry was posted in Justice, SCOTUS, Social Issues and tagged . Bookmark the permalink.

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