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. 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.

• "Take account of"

It is the result of a purposeful adherence to formalism of the court.

• Whatever is being adhered to, it isn't "formalism of the court." You meant to say "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: a class based deference to the needs to big business and a hostility to the American working class.

• How about just "class justice" after the colon? Are eighteen words doing the work of two?

II. The Court’s Stated Rationales

The certified question

• Sounds like a term of art in a situation where a state appellate court issues an advisory opinion certified to it by a federal court. That's not the same thing as a grant of certiorari, where the reference is not to a question certified but to a record certified as accurate of proceedings below.

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.

• The Court is a singular entity, which you sometimes show in your grammar but deny in your pronouns. This passage is, frankly, a mess. It could not have been proofread.

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,

• It wasn't wrongly decided just because Congress wanted the statute to say something other than what the Court held it said.

instead only pointing out that Congress amendment only specifically to seniority structures and not discriminatory salary increases.

• This is the correct response to an amendment in response to an interpretation. If Congress has specifically addressed the issue of statutory language, why should the Court find that it has done more than its words indicate?

The Court refuses to accept that Congress corrected the incorrect decision in Lorance. Although, the Court acknowledges that it was overruled,

• "Overruled," in this context, is rhetoric, not legal analysis. Legislators who disagree with a judicial interpretation can talk of "overruling" if they like, but they are actually simply legislating, that is, changing the rule of law that will apply to future disputes. They are not revising a judgment in a past dispute, and there may well be, as the Court says it finds here, remaining reasons to consult and apply a decision interpreting a statute that was nonetheless later amended to change the rule established by the prior decision.

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

• promotion

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.

• Adequate proofreading would have observed the alternate phrases left in and deleted one.

Clearly, the majority believes that Congress cannot legislate broad standards, but instead must make fast and hard rules.

• Referring to the Court as "the majority" is a privilege of dissenting justices. You don't have it. The Court is the Court to you. I think this distinction between rules and standards is an overtheory. The Court is determined to read Title VII as narrowly as possible, which--when there is a Republican majority--it always does. You see that this is just another in a long series of examples of stalling by the Court, which will be followed by further action when Democrats possess both working majorities in Congress and the White House. This is an old game. I'm not sure whether you think the reader won't know, and will take it with special seriousness, or what.

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.

• But this dispute--how much of the past to bury after 180 days--has been going on since 1965. The Republican Party created the short statute of limitations on claims as one of its contributions to the legislation, along with the enterprise size threshold to exclude small businesses. It uses the tools it made where it can. The Court is not wrong to find self-defeating components in the Act: they were deliberately put there by the party which four years later began the process it has now completed, of becoming the Southern white people's party on the basis of resistance to civil rights. Therefore the Court behaves disingenuously on both sides, as the Democratic justices do in Steelworkers v. Weber, where they use legislative history to create the appearance of ambiguity where the statute is unambiguously unfavorable.

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.

• The Democrats in Congress will change the Ledbetter rule in an instant, if they can. In the Senate, they will try to force a vote on McCain? and a veto on the President, but they won't succeed. If they have a Democratic President next year, they'll get it doe in February if not sooner. But you want judges who will read FISA as narrowly as possible, no "spirit of the law" bullshit then, right? These arguments are always political, and pretenses of neutral principle are a joke.

-- JosephMacias - 04 Apr 2008