-Caveat Lector-
Begin forwarded message:
From: [EMAIL PROTECTED]
Date: June 2, 2007 11:20:41 PM PDT
To: [EMAIL PROTECTED]
Cc: [EMAIL PROTECTED], [EMAIL PROTECTED], [EMAIL PROTECTED]
Subject: Supreme Court Ruling: Workers Have No Legal Right to Sue
Bosses Who Exploit Them
Bad Think
The Supreme Court mixes up intending to
screw your employee and actually doing it.
By Richard Thompson Ford
Slate, May 30, 2007
http://www.slate.com/id/2167286?nav=tap3
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?
Possible answers:
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 <notorously right-wing> 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 not 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 is George E. Osborne Professor of Law at
Stanford Law School. His latest book is Racial Culture: A Critique;
he is currently at work on a new book titled The Race Card.
Article URL: http://www.slate.com/id/2167286/
Copyright 2007 Washingtonpost.Newsweek Interactive Co. LLC
See what's free at AOL.com.
www.ctrl.org
DECLARATION & DISCLAIMER
==========
CTRL is a discussion & informational exchange list. Proselytizing propagandic
screeds are unwelcomed. Substance—not soap-boxing—please! These are
sordid matters and 'conspiracy theory'—with its many half-truths, mis-
directions and outright frauds—is used politically by different groups with
major and minor effects spread throughout the spectrum of time and thought.
That being said, CTRLgives no endorsement to the validity of posts, and
always suggests to readers; be wary of what you read. CTRL gives no
credence to Holocaust denial and nazi's need not apply.
Let us please be civil and as always, Caveat Lector.
========================================================================
Archives Available at:
http://www.mail-archive.com/[email protected]/
<A HREF="http://www.mail-archive.com/[email protected]/";>ctrl</A>
========================================================================
To subscribe to Conspiracy Theory Research List[CTRL] send email:
SUBSCRIBE CTRL [to:] [EMAIL PROTECTED]
To UNsubscribe to Conspiracy Theory Research List[CTRL] send email:
SIGNOFF CTRL [to:] [EMAIL PROTECTED]
Om
