Hey, it's a hypothesis. -WD
On 5/31/07, andie nachgeborenen <andie_nachgeborenen at yahoo.com> wrote:
> http://www.slate.com/id/2167286/
>
>
> Bad Think
> The 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
>
>
> 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 been
> 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.
>
>
> 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.
>
>
>
>
>
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