The Latest Attempt To Gut Anti-Discrimination Law

It’s generated very little discussion in light of the global warming case, but in some respects a more important case that came before the Supreme Court this week is Ledbetter v. Goodyear. I’ll have a longer piece about the case and the larger issues next week, but the dispute is about a clear-cut case of gender discrimination:

The case was brought to the court by a woman, Lilly M. Ledbetter, who worked for 19 years as a manager at a Goodyear Tire and Rubber plant in Gadsden, Ala. For years, Ms. Ledbetter was paid less than men at the same level, and by 1997, as the only female manager, she was earning less than the lowest-paid man in the department. In 1998, after an undesired transfer, she retired and filed a discrimination charge against the company with the Equal Employment Opportunity Commission.

Seems straightforward, right? Except that there’s a procedural question about the statute of limitations imposed by the Civil Rights Act. Logically enough, according to the plaintiff, the EEOC, and several lower courts every time an employee receives a lower paycheck because of rank discrimination in fact represents ongoing discrimination. But to according to 11CA and (natch) the Bush administration, only the initial act of intentional discrimination counts as discrimination, and ongoing pay inequities created by this discrimination don’t count. This case is yet another illustration of how conservative civil rights retrenchment works: you don’t repeal or roll back popular civil rights legislation, which would attract visibility, but rather you can use executive agencies and the court to quietly create various procedural hurdles that make almost impossible to actually pursue a suit and provide evidence of discrimination. And this is an area where who is appointed to federal courts makes a huge difference, although it’s rarely discussed during confirmation hearings.

It’s not clear how the case will come out. The oral argument suggests, not surprisingly, that Roberts will almost certainly vote to uphold 11CA, and Alito is if anything an even more slavish pro-business hack. An interesting swing vote is Scalia, who’s more a philosophical conservative than just pro-business; his jurisprudence often, but not always, meshes with business interests, and he may believe that the language of the statute constrains him. Kennedy is also a tough call. I may revise my judgment when I read the transcripts more carefully, but I’m cautiously optimistic as of now.