We Build Borders Here: The Court Imposed Chasm Between Life and Law

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. In addition, the Democratic Party should exploit this classist attack on poor women to win the election in November and reinvigorate the civil rights movement. The 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 take account of the real life situations in which discrimination occurs. It is the result of the Court's purposeful adherence to formalism. 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: class justice.

II. The Court’s Stated Rationales

The Court had to decide 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 upholding Congress’ intention to give businesses a form of repose from claims that had long passed. The Court also cited four (arguably distinguishable cases) and distinguished one case that appears to be the most poignant. Lastly, the Court declined 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 characterized payments under these systems as new “direct violations of Title VII.” More damning to the Court’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 decided against the will of Congress, instead only pointing out that Congress amendment only specifically to seniority structures and not discriminatory salary increases. Because of the presence of legislative history suggesting that Congress meant to generalize the earlier decision in Bazemore, the Court was acting disingenuously when they stated they were following legislative history. The Court refuses to accept that Congress corrected the incorrect decision in Lorance. Although, the Court acknowledges that Congress clarified its intent regarding Title VII, the Court 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 promotion practices, the result is the same. The Court seems unable to review its previous decision in light of Congress’ clarification and generalization of the law. Instead it makes asinine distinctions, upholding a precedent to which Congress has already expressed its opposition. If Congress acts again to overturn Ledbetter, the Court would still hold it, as well as Lorance, to be good law if another permutation of the continual paycheck question arose in court.

IV. The Underlying Struggle

Ledbetter is illustrative of the Democratic Party’s struggle to expand civil rights and the Republican Party’s imperative to stand in opposition to that expansion. Smith v. Robinson and its progeny is another series of cases that typifies this type of back and forth between Congress and the Court. Since 1965, the Republican Party has solidified its hold on the Southern states by becoming the party that opposes civil rights. The 180-day limit to file grievances under Title VII was the Republican’s contribution to the bill. This was the result of a President who was elected, in part, by stating that he appointed “good judges.” These same judges declared their allegiance to those voters when they ruled against Ms. Ledbetter. This back and forth game between the Democrats and Republicans in the Court and the Congress to gain votes is damaging to the nation. Ledbetter functionally gutted womens’ ability to challenge disparate pay raises and signaled to businesses that they were free to discriminate against women with virtual impunity.

IV. Conclusion

The latest conservative attack on women’s rights is indefensible, even to the Republican’s base. McCain? defended the Republican stalling on the issue by stating that women need “education and training.” The Democratic Party needs to exploit this issue for the upcoming election, because it is an issue that could potentially cut across party lines and also rejuvenate the civil rights movement.