Home > Corporate World > Bush’s Supreme Court: Pay Discrimination OK

Bush’s Supreme Court: Pay Discrimination OK

May 30th, 2007

The five conservatives on the Supreme Court have just handed down yet another abominable decision, this one rewarding bigots and established lawbreakers:

The court held on Tuesday that employees may not bring suit under the principal federal anti-discrimination law unless they have filed a formal complaint with a federal agency within 180 days after their pay was set. The timeline applies, according to the decision, even if the effects of the initial discriminatory act were not immediately apparent to the worker and even if they continue to the present day.

Essentially, it seems that the court has now placed a 6-month statute of limitations on discrimination: if you can get away with it for six months without being called on it, then you’re home free. How can this be seen as anything but a slap in the face for those who are discriminated against, and a pat on the back to bigots?

The ruling clearly says that you lose the right to sue for losses due to discrimination even if they are hidden from you. For example, you get a paycheck that is lower than your male or white co-workers, but you don’t find out about the disparity for some time. So unless you are constantly comparing paychecks with your better-paid co-workers, you cannot bring a claim later when you find out by some other means. It also means that you can’t even sure for discriminatory pay within the past six months if the disparity began more than six months ago.

Imagine someone is stealing from you, robbing your house every month. They break and enter and take something valuable, maybe a few thousand dollar’s worth of stuff each time. After seven months, you finally caught the person, and they fully confessed. So you report it to the police. “Sorry,” they tell you. “They started robbing you seven months ago, so they’re free and clear.” You protest: “But the statute of limitations for robbery is six months, and they have robbed me six times since then–including today!” But the police cannot help you. “We sympathize, but this was a long-term robbery over installments; since it started more than six months ago, they can keep whatever they took. You have to let them go, and let them take what they were trying to steal today to boot.” That is essentially the decision which SCOTUS just handed down, as it applies to worker pay disparities.

But it is much worse than just that: this ruling effectively cut the knees out from under anyone who is discriminated against in the workplace, and gave a free pass to discriminatory pay. From here on out, it will be close to impossible to sue anyone for discriminatory pay.

What it boils down to is that the Supreme Court of the United States has just handed bigoted or otherwise dishonest employers a clear set of instructions on how they can legally discriminate. How many workplaces have full disclosure of everyone’s salaries? Few, if any. Most people who are discriminated against don’t find out for years, if ever. All an employer has to do is bear down on employees discussing paychecks and the risk goes down considerably–and if they are found out, they now only have to worry about six month’s worth of pay disparity–a small amount relative to the legal fees of a lawsuit. [Update: my error–they don’t have to worry about anything if they’re caught after six months.] But chances are, they won’t be found out–they can just make up a false claim about why workers’ pay is different. They could claim to the employee who protests that the difference is merit-based, or some other excuse. Sometimes, it takes several different acts of pay discrimination over a long period of time before a solid-enough case for discrimination can be established–at least enough to have a snowball’s chance in hell of winning in court.

Discrimination, by nature, is almost never out in the open or clear-cut.

Even if worker pay is out in the open (have you ever worked in a place where it was?) this ruling still allows for incremental discrimination. All an employer has to do then is to make each pay variance small enough in itself not to be highly actionable. Who’s going to sue over, say, a $50-a-month pay difference every six months, especially when legal fees would exceed the difference? Even if legal fees are not an issue, how many people will risk making their workplace hostile to them and spend so much time tied up in legal proceedings over such a disparity? But over a span of 20 years, that’s a $2000 difference. By going slow and incrementally, employers now have an excellent legal cover for discriminatory pay.

But the ruling could be even easier to abuse. I quickly came up with a scenario which workplaces might now use: make a small pay disparity between workers, not enough for people to quibble over even if it is found out. Then, after six months, if nobody files a claim, then jack it up to whatever amount you want. Because the disparity started more than six months ago, if you are sued, then you can just reveal the first inequity and claim protection because 180 days have passed.

The rationale is that the person discriminated against waited too long to file the lawsuit–but how does that make it OK for what happened previously? The money is effectively being stolen from the worker, and the worker more often than not is in a position of lesser power and more fear. Many people are hesitant to sue for unequal pay because they are afraid that they will lose their job or at the very least, their workplace will become incredibly uncomfortable. So the discrimination continues until a threshold is reached and the victim simply can’t take it any longer–so they sue. But now they’re told, “because you didn’t come out right away and sue, you get nothing, and your employer gets off scot free.”

Ironically, your employer could even benefit by admitting to more discrimination. If you saw a discrepancy start five months ago, your employer could get off scot free if they reveal records showing that they violated the law for a longer period than you were aware of.

At the heart of the ruling was the interpretation of when the crime is committed. Under standing law, each paycheck was seen as a reiteration of a continuing crime starting with the first discrepancy. But Bush’s court twisted that around, claiming that the crime only took place the first time it was instituted, and not since then. Apparently, they felt that an employer cannot be expected to see differences in employees’ paychecks any time after the changes are made. This could fall under the “I forgot that I started committing a crime last year” category of defense. Question: if an employee embezzles from a company for more than six months, can they get off scot free? What if they do so by setting up an automatic system that does the work for them? No, I didn’t think so. This kind of robbery is only legal one-way.

This ruling means that if a worker wants to be protected against discrimination, they must constantly be paranoid. They are forced to persistently badger their coworkers about their pay, and rush to court once they discover a disparity. They no longer have enough time to first establish whether it was discriminatory, merit-based, an oversight, or something else. They no longer have enough time to collect evidence to prove discrimination, which often takes years. They are now forced to rush into court with the weakest of evidence, not even sure themselves that the pay disparity is discrimination-based. They risk alienating employers who might not be discriminatory, and risk damaging their own reputation as a worker that an employer can trust.

And in case you think that Bush, who claims to stand by the little guy, had no hand in the matter, then get a load of this:

Under its longstanding interpretation of the statute, the commission actively supported the plaintiff, Lilly M. Ledbetter, in the lower courts. But after the Supreme Court agreed to hear the case last June, the Bush administration disavowed the agency’s position and filed a brief on the side of the employer.

The judgment completely ignores or disparages the nature of workplace discrimination, and represents less a legal opinion than a wealthy, conservative male’s cultural mindset. Yet another ruling from the Court that Bush Poisoned.

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  1. Therefore
    May 30th, 2007 at 15:06 | #1

    I don’t believe that you are correct that an employee could even collect on the last six months. This decision states that the discrete act, deciding to pay less, is when the clock starts. At the end of the six months, the employee can no longer make any claim — even if the discriminatory payments go on for decades.

  2. Luis
    May 30th, 2007 at 15:15 | #2

    Did I claim that an employee could collect on the most recent 6 months? I didn’t think so, but I may have mistyped somewhere. Where did I say that?

  3. Therefore
    May 30th, 2007 at 15:34 | #3

    My misreading, sorry.

  4. Luis
    May 30th, 2007 at 16:29 | #4

    Actually, I re-read, and you were right. Not about the whole post, but in one section I stated that companies would have to worry about only the last six month’s of discrimination. That was wrong, and I even contradicted myself. I’m correcting it now–and thanks for the catch.

  5. Paul
    May 30th, 2007 at 17:50 | #5

    I read somewhere recently that John Roberts has, in his short time, made it obvious that he focusses on issues like this- issues of whether or not someone has “standing” to be filing a case.

    The Roberts Court has done this any number of times, using it as a way to either avoid the crux of a real decision, or to essentially implement their social preferences without actually ruling on the issue at hand.

    Although Alito wrote this decision, it sure sounds the same. The Court essentially went for a narrow interpretation of the law as written and said that this lady doesn’t have “standing”.

    The fix for the problem, of course, is to amend the law and clarify it.

    While I think it’s a pretty bad decision, and that a perfectly reasonable interpretation of the law would give the plaintiff standing, I can see the majority’s point. If the law specifically says that you have to have suffered an explicit event in the past 180 days, and she didn’t, then she doesn’t have standing.

    It’s a nitpicky thing that essentially denies her true justice, but it’s also within the bounds of how the law is written.

    Fortunately, grown-ups like Hillary Clinton are already saying they’ll submit a bill to amend the law.

  6. Luis
    May 30th, 2007 at 18:05 | #6

    The way I see it, the court went for the interpretation that followed one reading of the letter of the law, but clearly violated the spirit of the law. The law was intended to stop discrimination, and the point about whether each paycheck represented a new iteration of the violation was an interpretation of the law; in one sense, both interpretations are possible. But since the intent was to police and stop discrimination, and since one interpretations wholly upholds that and the other interpretation wholly defeats that, it seems crystal clear to me that the interpretation which supports the law’s intent should be the one followed–and it has been, up until now.

    The court did not have to interpret it the way they did, to my understanding–there was no overriding point of law that I could see which forced them to choose the lesser interpretation, and they had intent to inform them to uphold prior practice. But they instead chose to deny the spirit of the law in what was the lesser of the two interpretations–as far as I can see, a wholly malicious attempt to circumvent a law which the justices personally disliked.

  7. Tim Kane
    May 31st, 2007 at 00:25 | #7

    I haven’t read the details of this decision, and in truth supreme court decisions, in my mind require a lot of backround understanding to layers of things and issues that I never have time for.

    That’s my disclaimer.

    On the face of it, this is almost beyond belief. This is, in effect, throwing the anti-discrimination law out. And here’s why I can say that: I have worked for companies that have said that it is against the rules to divulge your compensation to others (or maybe it was other employees).

    I think the company was EDS, and I think it was during the late 80s. And they were paying me peanuts, but i did it for the experience (someone once gave me a car while I worked there and I didn’t even have enough money to process the transfer of title).

    In general, you learn over time, that it is kind of unethical to discuss your wage with another employee – not because its wrong, but because its bound to piss you or him or both of you off, and maybe you were content before knowing.

    Because all of that, its possible for a company to have a policy of discrimination, insist on compensation confidentiality. Very few employees would ever find out and much much fewer would find out within six months.

    My God this is awful.

    Now I heard Roberts give speeches about making very narrow decisions, and on the surface, I am for that. Our society benefits when the court makes narrow decisions. They are supposed to shop from the supermarket place of ideas, and narrowly apply the best idea that fits a narrowly defined question.

    This has the benefit of turning our society into an ideological patchwork quilt. This is a very, very sophisticated mechanism that keeps ideological battles out of our politics (compared to civil law countries of continental europe, japan and China before WWII).

    So I was comforted, but uneasy because of who put him there, by his statement of very narrow decisions, because I believed it would limit the damage he caused in apply his bias towards neoconservative ideology.

    But I also thought that he’s probably poring new wine into old wine skins. Meaning he’s using old terms to do something new. Here he’s not so much narrowing the question as he is using a narrow answer to answer the wrong question. Standing is usually articulated in the statute. The statute is usually clear on it. If it is not, a judge is free to ‘assume’ one and if the public or legislature doesn’t like it, they can impose one through legislation.

    The problem is, what’s the chance of that happening now. Those laws were well crafted and written (which is why I find it hard to believe standing wasn’t clearly defined) by liberal legislatures. We are living in completely different times now, and I have little faith that they’ll fix this. And if the legislature does, it would probably be vetoed by Bush.

    The ruling proves we are living in a corporatist state. The ruling is trying to protect the liability of corporations (who don’t vote, aren’t real entities, have no sovereignty aren’t real persons, so they can cause pain and suffering through discrimination to real flesh and blood humans with the most minimal exposure. That’s inhumane, unless you think corporations are human.

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