I. Congress Should Move to Amend Title VII of the Civil Rights Act of 1964

Congress should move to amend Title VII of the Civil Rights Act of 1964 (Title VII) in order to overrule the recent Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co. This ruling held that persons claiming sexual discrimination must file a charge with the Equal Employment Opportunity Commission (EEOC) within 180 days of the discriminatory act, that this time limit started at the time of the act and not its discovery, and that reoccurring paychecks do not count as new discriminatory acts if the pay discrepancy is the result of past discrimination. This ruling does not account the real life situations in which discrimination occurs. It is the result of a purposeful adherence to formalism of the court. While the decision is supposedly based off the Court’s understanding of the plain text of Title VII, the Court is really hiding its motivation: a class based deference to the needs to big business and a hostility to the American working class.

II. The Court’s Stated Rationales

The certified question was if reoccurring paychecks with disparate pay because of past discriminatory actions counted as new triggering discriminatory events that are actionable under Title VII. The Court answered this question in the negative, claiming that it was merely upholding Congress’ intention to give businesses a form of repose from claims that had long passed. The court also contends that they are simply strictly adhering to the procedural requirements set out by the Congress. They also cite four (arguably distinguishable cases) and distinguishes one case that appears to be the most poignant. Lastly, the Court declines to address Ledbetter’s policy argument regarding the difficulty of detecting pay discrimination because it is not the Court’s role to revisit the way in which Congress balanced the interests of the employers and the employees.

III. What the Court Ignored

The Court acted disingenuously regarding the situation. It created artificial barriers for itself, defining what was and was not contemplated within the creation of Title VII. The Court reasoned that the 180 day limit provided some relief for the corporations because that they would not be liable for discrimination long past. However, while the 180 day limit makes sense for overt acts of discrimination, such as the denial of tenure, a demotion, or a firing, it does not make sense for covert actions of discrimination.

The Court hangs on to its prior decision in Lorance v. AT&T Technologies, Inc., in which the court held that a indiscriminate paychecks seniority system that was based off a previous discriminatory system was not actionable because the new system, only being a continuation of the old, was not itself discriminatory. That decision is its own disaster. However, Congress amended Title VII after that case to fix what it saw was a wrongly decided decision. Under Title VII Congress then specifically included seniority systems that carried out past discrimination; the legislative history even characterized payments under these systems as new “direct violations of Title VII.” More damning to the Majority’s opinion, the legislative history also points out that the new amendment to Title VII correctly “generalizes the result correctly reached in Bazemore” (where the court decided that a non-discriminatory pay structure based off past discrimination violated Title VII with every new paycheck). The Court doesn’t ever note that Lorance was wrongly decided, instead only pointing out that Congress amendment only specifically to seniority structures and not discriminatory salary increases. The Court refuses to accept that Congress corrected the incorrect decision in Lorance. Although, the Court acknowledges that it was overruled, it draws a fine distinction and holds that Congress only really meant to hold that paychecks are continual violations if they stem from previous discriminatory seniority structures. Whether the past discrimination is due to seniority structures or discriminatory promoting practices, the result is the same. The Court seems unable to review its previous decision in light of Congress’ correction. Instead it makes asinine distinctions, upholding a precedent that was effectively overturned by Congress. If Congress acts again to overturn Ledbetter, the Majority would still hold it, as well as Lorance, to be good law to be guiding precedent if another permutation of the continual paycheck question arose in court.

Clearly, the Majority believes that Congress cannot legislate broad standards, but instead must make fast and hard rules. While the Judiciary is capable of articulating broad standards that allow for flexibility, the Majority seems to favor a type of Roman law where everything must be specifically legislated. This viewpoint is disingenuous because it is impossible for the Congress to hammer out every fine deal in legislation. The Congress depends on the Judiciary to interpret the laws according to their intent of the overall bill. Ignoring that dependency only serves to weaken the ability of Congress to form laws that cover the variety inherent in life and strengthen the Court’s ability to legislate from the bench.

The most disturbing part is that the Court cloaks it actions by claiming that they are upholding the intent of Congress. They state that the 180 day deadline for filing grievances “reflects Congress' strong preference for the prompt resolution of employment discrimination allegations through voluntary conciliation and cooperation.” That may be true regarding overt acts of discrimination, but the Congress’ amendment to Title VII after Lorance also evidences Congress’ strong preference for each paycheck to be constructed as a new violation of Title VII. The selective adherence to Congress’ intent only serves to highlight the arbitrariness of the Court’s decision.

IV. Conclusion

Due to the Court’s unwillingness to sincerely contemplate the intent of Congress, the Congress should legislatively overturn Ledbetter to ensure that pay discrimination is not legal as long as companies and corporations can conceal the truth for a mere six months. In addition, the American people should vote in November for a President who will nominate judges that will follow both the letter and the spirit of the law.

-- JosephMacias - 04 Apr 2008

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