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

By Richard Thompson Ford
Posted Wednesday, May 30, 2007, at 5:39 PM ET
Samuel Alito. Click image to expand.

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 continue to 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.

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Richard Thompson Ford is George E. Osborne Professor of Law at Stanford Law School. His forthcoming book The Race Card will be published this month.
Photograph of Samuel Alito by Mark Wilson/Getty Images.
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