Workplace Realities?

Now what would these fine gentlemen know of workplace realities? Why would one dirty his hands with practical application? Better to proclaim from above:

WASHINGTON, May 29 — The Supreme Court on Tuesday made it harder for many workers to sue their employers for discrimination in pay, insisting in a 5-to-4 decision on a tight time frame to file such cases. The dissenters said the ruling ignored workplace realities.

The decision came in a case involving a supervisor at a Goodyear Tire plant in Gadsden, Ala., the only woman among 16 men at the same management level, who was paid less than any of her colleagues, including those with less seniority. She learned that fact late in a career of nearly 20 years — too late, according to the Supreme Court’s majority.

The court held on Tuesday that employees may not bring suit under the principal federal anti-discrimination law unless they have filed a formal complaint with a federal agency within 180 days after their pay was set. The timeline applies, according to the decision, even if the effects of the initial discriminatory act were not immediately apparent to the worker and even if they continue to the present day.

I smell a paternalism at work here: wouldn't women be better served not participating in the potential ugliness of workplace reality, thereby avoiding such workplace discrimination? I'm also impressed that the New Courts prefer to chuck so much on the Congress? Hello? That bought-and-sold, horse-and-pony show doesn't represent the American people, but well organized special interests. Let's not pretend that this judicial decision will be quickly corrected by the other branch. Pushing off your work on someone else, when you could have provided an even playing ground as injustices become known. Thanks fellas! Nice working with ya. Nevermind Ruthie -- she'll be gone soon enough...

In a vigorous dissenting opinion that she read from the bench, Justice Ruth Bader Ginsburg said the majority opinion “overlooks common characteristics of pay discrimination.” She said that given the secrecy in most workplaces about salaries, many employees would have no idea within 180 days that they had received a lower raise than others.

An initial disparity, even if known to the employee, might be small, Justice Ginsburg said, leading an employee, particularly a woman or a member of a minority group “trying to succeed in a nontraditional environment” to avoid “making waves.” Justice Ginsburg noted that even a small differential “will expand exponentially over an employee’s working life if raises are set as a percentage of prior pay.”

Justices John Paul Stevens, David H. Souter and Stephen G. Breyer joined the dissent.

Ms. Ledbetter’s salary was initially the same as that of her male colleagues. But over time, as she received smaller raises, a substantial disparity grew. By the time she brought suit in 1998, her salary fell short by as much as 40 percent; she was making $3,727 a month, while the lowest-paid man was making $4,286.
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Title VII’s prohibition of workplace discrimination applies not just to pay but also to specific actions like refusal to hire or promote, denial of a desired transfer and dismissal. Justice Ginsburg argued in her dissenting opinion that while these “singular discrete acts” are readily apparent to an employee who can then make a timely complaint, pay discrimination often presents a more ambiguous picture. She said the court should treat a pay claim as it treated a claim for a “hostile work environment” in a 2002 decision, permitting a charge to be filed “based on the cumulative effect of individual acts.”

"The realities of the workplace reveal why the discrimination with respect to compensation that Ledbetter suffered does not fit within the category of singular discrete acts “easy to identify.” A worker knows immediately if she is denied a promotion or transfer, if she is fired or refused employment. And promotions, transfers, hirings, and firings are generally public events, known to co-workers. When an employer makes a decision of such open and definitive character, an employee can immediately seek out an explanation and evaluate it for pretext. Compensation disparities, in contrast, are often hidden from sight."

In response, Justice Alito dismissed this as a “policy argument” with “no support in the statute.”

Experts Say Decision on Pay Reorders Legal Landscape (May 30, 2007)
Text of the Decision (pdf)
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Legal analysis and conclusion by Workplace Prof Blog:

The crucial distinction between the majority opinion by Justice Alito and the dissent by Justice Ginsburg comes down to really just one question: under Morgan, is pay discrimination a discrete act like a termination or failure to promote -- or is it more like a cumulative series of individual events like hostile work environment sexual harassment?
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In sum, this decision is inconsistent with the purposes of the Title VII to both make victims of discrimination whole and to eradicate employment discriminatory practices from society at large. It leads to an absurd situation where employees either must bring pay claims prematurely when there is not enough evidence that there has been unlawful pay discrimination or wait to a later time when there exists more substantial evidence of pay discrimination and be barred from bringing such claims by the statute of limitations (as in Ledbetter). This inequitable state of affairs cannot stand and, it is my hope, it will be legislatively nullified.