Taking Another Crack at Equal Pay.

Fair PayLilly Ledbetter with Barack Obama last year.

Lilly Ledbetter worked in a Goodyear plant in Alabama for nearly two decades. It wasn’t until she was near retiring that she found out that her male co-workers in the same position made more than she did — a lot more. (She earned $3,727.  Men in her position on the low end earned $4,286; on the high end, they made $5,236.) And so she sued Goodyear for discrimination.

Then things got tricky. Title VII, the federal civil rights law that forbids employment discrimination, requires that employees file charges “within one hundred and eighty days after the alleged unlawful employment practice occurred.” In court, Goodyear essentially argued that the act of discrimination — passing Ledbetter over for a raise or promotion — happened decades ago, and so the time for her to make a stink about it had passed. The case made it to the Supreme Court, which sided with Goodyear.

It was a head-scratching decision by the Court.* While the time constraints in Title VII makes sense if the discrimination (or retaliation) is overt, what if you don’t know you’re being discriminated against until much later? (Ledbetter, for example, didn’t know she was being shorted until she received an anonymous letter telling her how much the dudes with her title were actually pulling in.)

Now it looks like Obama and the incoming Democratic Congress will introduce legislation that would relax the timeframe in discrimination suits,** as the Supreme Court decision has had far-reaching ramifications.

In the last 19 months, federal judges have cited the Ledbetter decision in more than 300 cases involving not only Title VII, but also the Age Discrimination in Employment Act; the Fair Housing Act; a law known as Title IX, which bars sex discrimination in schools and colleges; and even the Eighth Amendment to the Constitution, which protects prisoners’ rights.

Lower-court judges have been influenced by two particular aspects of the Ledbetter decision. The Supreme Court drew a sharp distinction between “discrete acts” of discrimination and the continuing effects of past violations. Employers, it said, do not necessarily violate the law when their recent actions have no discriminatory purpose, but perpetuate the adverse effects of pay decisions made in the past.

The Ledbetter precedent has stymied a wide range of civil rights plaintiffs.

In March 2007, Judge Paul L. Friedman of the Federal District Court here allowed employees at the Federal Aviation Administration to challenge the agency’s pay scales as biased against older workers.

A year later he reversed himself and ruled for the government, saying, “The import of Ledbetter for this case is clear.”

There’s a lot of crap from the past eight years to undo. Fixing the fallout from Ledbetter is a welcome start.

*…and another sterling example of the Bush administration’s shitty civil rights record. The EEOC actively supported Ledbetter’s case by  arguing that “each paycheck that reflects the initial discrimination is itself a discriminatory act that resets the clock on the 180-day period.” But when the Court agreed to hear the case, the Bush administration filed a brief siding with Goodyear. During the Bush administration, the Civil Rights division at Justice, long the province of career civil servants, was essentially gutted, leaving those positions to be filled with political appointees with little to no civil rights litigation experience. Perhaps unsurprisingly, the division ended up pushing “reverse racism” cases.

**An earlier version of this legislation, co-sponsored by Obama, was killed by Senate Republicans.



Gene "G.D." Demby is the founder and editor of PostBourgie. In his day job, he blogs and reports on race and ethnicity for NPR's Code Switch team.