Supreme Court mix-up in Ledbetter.

The law, lawyers, and the court.
May 30 2007 5:39 PM

Bad Think

The Supreme Court mixes up intending to screw over your employee and actually doing it.

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Conceptually, Ledbetter relies on a confused conception of discrimination. Alito's opinion assumes that the legal injury to Ledbetter was Goodyear's intent to pay her less because of her sex, rather than the ongoing act of actually paying her less. But that's not right. Discriminatory intent isn't itself the legal wrong—it's evidence of a discriminatory act. Ledbetter argued that she was paid less than that of her male co-workers because of her sex right up until she retired. To prove this, she showed that her employer intentionally discriminated against her at some point in setting her salary, and every subsequent paycheck was an application of the original set point. Who cares whether the subsequent salary decisions were intentionally discriminatory? Goodyear continued to pay Ledbetter less than her co-workers for the same work because of her sex. That's sex discrimination. When it first decided to discriminate against her should be irrelevant.

So, why does the court hold otherwise? A cynic would stop here: Five conservative justices voted to restrict the scope of a civil-rights statute, while four liberals voted to expand it. The justices of the Supreme Court are unelected partisan hacks in black robes, it's raw politics, just as the most skeptical critics of the rule of law have always insisted.

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Let's face it: This account is plausible. But there is another possibility. Maybe Ledbetter is a principled mistake rather than political hackery. The decision reflects an obsession with state of mind—discriminatory intent—that's a common feature of our thinking about discrimination. For Justice Alito, discriminatory intent and disparate treatment are one and the same: The intent isn't evidence of the treatment—it is "the central element." From this, and only from this, it follows that the legal injury to the employee occurs only when the employer decides to discriminate and not every time it blithely does so. The obsession with state of mind distracts us from the real goal of Title VII: equal treatment.

What's interesting is that the focus on state of mind can also inform liberal thinking about discrimination. In an earlier landmark sex-discrimination case, Price Waterhouse v. Hopkins, Justice Sandra Day O' Connor worried in a concurring opinion that the court's liberal wing would turn Title VII into "thought control" by making employers liable for sexism that "tainted" a promotion decision without being the root cause. It's tempting for both liberals and conservatives to fixate on state of mind: Liberals want to punish bigots for their biases, while conservatives want to be sure that only bigots are punished. But both impulses are misguided. Title VII is not punishment for bad thoughts—it's a civil remedy for discriminatory actions. To interpret it otherwise, as Justice O'Connor suggested, is thought control. And the law must punish ongoing discrimination whether it's motivated by ongoing bias or by the thoughtless continuation of bias in the past. Anything else, as Lilly Ledbetter could attest, is a swindle.

Richard Thompson Ford teaches at Stanford Law School. His latest books are Rights Gone Wrong: How Law Corrupts the Struggle for Equality and Universal Rights Down to Earth.