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.

Samuel Alito. Click image to expand.
Justice Samuel Alito

Pop quiz: Suppose you've just discovered your boss has been embezzling from you for years. Since the 1990s, he's stolen 30 percent of the return on your retirement investments each year. When did your boss actually swindle you? How long do you have to sue? A) He swindled you when he first came up with the scheme—if you didn't figure it out and sue him then, you're too late and he can keep your money. B) He swindled you when he shorted you for the first time—if you didn't find out and sue him then, you're too late. C) He swindled you from the first year right up until the end, when you found out about it and took the bastard to court. D) Stop bellyaching; you're lucky to have a job.

If you answered C, you have a promising career in law—writing frustrated and angry dissents along with Justice Ruth Bader Ginsburg. If you answered A, B, or D, welcome to the majority of the United States Supreme Court. On Tuesday, in Ledbetter v. Goodyear Tire and Rubber Co., Justice Samuel Alito wrote for the majority of the court that an employer who shortchanged a female employee for years, up until she retired, discriminated on the basis of sex only the first time this happened. Because she didn't sue right away—she probably didn't know she was being shortchanged until later—the court barred her claim as untimely, even though her employer continued to pay her less than men doing the same work until she left.

It's a bad decision. And at first, the Ledbetter opinion reads like ideological warfare: the right wing of the court struggling against precedent to gut a civil-law statute. But that may be unfair. In fact, the court's argument follows from a widespread—though misguided—obsession with state of mind that many conservatives and liberals share.

Lilly Ledbetter worked for Goodyear for almost 20 years. When she retired in 1998, she was by far the lowest-paid employee in her position. She earned $3,727 a month; the lowest-paid male working in the same position earned $4,286 and the highest-paid earned $5,236. Ledbetter proved that this disparity was because of her sex, and a federal district court in Alabama found Goodyear liable for sex discrimination. On appeal, Goodyear countered it hadn't discriminated against Ledbetter—recently. Title VII, the federal law that protects employees from discrimination, requires them to file a charge within a short period of time (180 or 300 days, depending on the state) "after the alleged unlawful employment practice occurred." In essence, Goodyear argued that any discriminatory decisions it might have made about Ledbetter's pay were made long before she filed. Ledbetter's low salary might have merely reflected her earlier, discriminatorily low pay rather than more recent gender bias. The 11th Circuit court of appeals agreed with Goodyear: Ledbetter's claim was too late. On Tuesday, in a 5-4 split, a majority of the Supreme Court agreed.

The Ledbetter decision is practically perverse and conceptually wrongheaded. Practically speaking, Justice Alito's opinion provides bad incentives for defendants and plaintiffs alike. Title VII's 180-day or 300-day filing period is short, but it's arguably fair in most cases, where the injury is discrete and obvious. An employee who is fired, denied a promotion, or required to trade sexual favors for fair treatment on the job knows precisely what has happened. He shouldn't be allowed to "sit on his rights"—he should either file a complaint or resign himself to the decision and move on. But an employee who receives a discriminatorily low salary over time, like an investor who is cheated by her broker, may not know she is being shortchanged for years. She isn't sitting on her rights because she doesn't know that her rights have been violated. Meanwhile, the injury she suffers is ongoing.

Ledbetter basically grandfathers in longtime pay discrimination. If an employer pays a woman less because of her sex, and isn't found out within the 180- or 300-day period, the employer can continueto pay the discriminatory wage. For employers, the lesson is obvious—hide your misdeed for six months and you're not only off the hook, you get to keep cheating. For employees, the lesson is equally clear: Sue early and often. If you suspect your boss might be discriminating with regard to your pay, you can't afford to wait around until you're sure.

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.

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.