You may recall a few months ago when Bush’s “Freshly Stacked™” Supreme Court issued a decision that changed the way pay discrimination is treated. Up until that time, discriminatory pay was actionable for 180 days after the last occurrence; if your employer started paying you less because of your gender or color say, twenty years ago, and you just found out with the last paycheck, you could sue them. But Bush’s court re-interpreted that to mean 180 days after the initial decision was made to discriminate.

Under this new interpretation, it is virtually impossible to sue for discriminatory pay differences. It would force workers to constantly demand to see co-workers’ pay amounts, constantly checking whether there is a discrepancy, and once one is found, leaves them virtually no time to resolve the matter out of court. It even rewards employers guilty of discrimination for breaking the law for longer periods of time–ironically, if an employer can come before the court and say that they violated this person’s rights for longer than 180 days, they get off scot-free. It also encourages employers to create hostile, segregated, and intimidating environments to keep workers from discussing their pay.

The message was clear: employers got a huge green light to pay workers differently based upon sex, color, or whatever other distinction they saw fit.

This was argued as being an oversight in the creation of the original law; it would be hard to actually approve of discrimination, but hey, that’s what the law says, so what are you going to do? The problem is, that’s not what the law said–it was one possible interpretation of what the law said, and was not a necessary one.

So why get upset? Just have Congress amend the law, and we’re okay again.

Well, aside from all discrimination suits now pending being voided and decades of lawbreakers given a free pass, there is the slight problem of getting such legislation past the Republicans obstructionists in Congress and the Bush White House. Just today, the House passed a bill that did the right thing:

To amend title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Americans With Disabilities Act of 1990, and the Rehabilitation Act of 1973 to clarify that a discriminatory compensation decision or other practice that is unlawful under such Acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice, and for other purposes.

Great! All good, right?

Except, of course, that a lot of stuff has gotten through the House… but it’s the Senate where the Republicans are blocking everything, and this will be no different. Senate Republicans will use the filibuster (again, with utter hypocrisy) for the umpteenth time, and even if that hurdle is cleared, it stands to be vetoed (PDF) by the White House:

H.R. 2831 would allow employees to bring a claim of pay or other employment-related discrimination years or even decades after the alleged discrimination occurred. H.R. 2831 constitutes a major change in, and expanded application of, employment discrimination law. The change would serve to impede justice and undermine the important goal of having allegations of discrimination expeditiously resolved.

Yes, isn’t it horrible that an employer can be sued even if they have continued to discriminate for decades!

Translation: the White House read is that discrimination only occurs at the time the initial decision to discriminate is made. So, in principle, if I were to start refusing today to hire a black person based upon their race, and then continued to make the same decision every week for 20 years, I would only be guilty of discrimination the first time I made such a decision, and not the subsequent 1,041 times after that. Presumably, this is based upon the “I forgot I was continuously breaking the law” defense, that a business could not be expected to remain aware of an ongoing illegal activity beyond a certain time frame.

As I mentioned above, the decision was originally played as being essentially a typo, and that the Supreme Court regrettably had to point out that typo though nobody really wanted it that way–but the White House stance is now that they agree with the typo, they believe the typo was the best thing all along, and that the typo should be followed, because it wasn’t really a typo, it was actually a feature. It even goes so far as to claim that the Ledbetter Fair-Pay Act would be a “major change” when actually it would simply reverse the Bush Supreme Court re-interpretation, and bring the law back to where it has been for decades.

Really what the White House is saying is, “we like the fact that Roberts and our other stooges made it possible to discriminate based on sex and color and whatever else we like, and we want it to stay that way, otherwise it could cause all sorts of nasty legal problems for our bigoted corporate pals.”

My take: don’t expect fair pay to show its head again anytime soon–not until Democrats take a much bigger majority in the Senate and the White House as well. Which, hopefully, will be starting in January 2009.