The following argument preview was written by Rae Woods of the Stanford Supreme Court Litigation Clinic.
Oral arguments for Ledbetter v. Goodyear Tire and Rubber Co. will be heard on Monday, November 27 (No. 05-1074). Ledbetter presents the question of whether and under what circumstances a plaintiff may bring an action under Title VII of the Civil Rights Act of 1964 alleging illegal pay discrimination when the disparate pay is received during the statutory limitations period, but is the result of intentionally discriminatory pay decisions that occurred outside the limitations period. In short, it asks how long an employee who is the victim of unlawful pay discrimination has to file a claim.
Kevin Russell of Howe & Russell will argue on behalf of petitioner Lilly M. Ledbetter. Glen D. Nager of Jones Day will argue on behalf of the respondent Goodyear Tire and Rubber Company. Assistant to the Solicitor General Irving Gornstein will argue on behalf of the United States (which filed a brief in the Supreme Court attacking the position of the EEOC in the court of appeals) as an amicus in support of respondent. The party and amicus briefs are available here. The joint appendix can be downloaded here.
Lilly M. Ledbetter, a former salaried employee of Goodyear Tire and Rubber Co., brought suit under Title VII of the Civil Rights Act of 1964, alleging illegal pay discrimination based on sex. At trial, Ledbetter relied on evidence of discriminatory pay decisions that occurred before the statutory limitations period to show that the paychecks she received within the limitations period were lower than those of her male counterparts because of unlawful sex discrimination. A jury found in her favor and awarded damages based on the cumulative effect nineteen years of discriminatory pay decisions had on the paychecks Ledbetter received during the limitations period.
Goodyear appealed the decision, arguing that it did not discriminate against Ledbetter and that in any event Title VII’s statutory limitations period should have confined Ledbetter’s evidence only to the incidents of discriminatory conduct that occurred within the statutory period. Goodyear asserted Ledbetter’s disparate pay claim was time-barred because the allegedly discriminatory salary determinations occurred more than 180 days before she filed the complaint.
The Eleventh Circuit essentially agreed with Goodyear. The court held that it was not enough to show that the paychecks that were diminished because of earlier discriminatory pay decisions were received during the statutory period. The court instead required her to prove intentional discrimination either in a pay decision that occurred within the limitations period or in the last pay decision preceding the limitations period. Concluding that “no reasonable juror could find intentional discrimination in either of the two decisions setting Ledbetter’s salary as it existed during the limitations period,†the Eleventh Circuit reversed and ordered that Ledbetter’s complaint be dismissed.
In Ledbetter’s brief for the U.S. Supreme Court, she relies on the holdings of the Court’s 1986 decision in Bazemore v. Friday and its 2002 decision in National Railroad Passenger Corp. v. Morgan to argue that recurring violations of Title VII are separately actionable. According to Ledbetter, employers have a continuing obligation to ensure the effects of discriminatory pay decisions are eliminated, regardless of how long ago the decisions were made under Bazemore, which held that each discriminatory paycheck constitutes “an independent unlawful employment practice in violation of Title VII, even if it simply implements a discriminatory pay decision made outside the limitations period.†Morgan held that an employee may challenge recurring violations occurring within the Title VII limitations period even if the plaintiff failed to challenge earlier instances of the same conduct in the past. Ledbetter concluded that Bazemore and Morgan establish that the statutory clock starts ticking anew each time an employee receives a paycheck tainted by an earlier discriminatory pay decision.
Ledbetter’s brief further argues that the Eleventh Circuit’s ruling is at odds with the purpose of Title VII. She explains that if an employee misses her opportunity to complain, “she may never seek even prospective relief and must quit her job and find a new one in order to regain an enforceable right to equal pay for equal work.†Under the rule espoused by the Eleventh Circuit, an employee would be “condemned to perpetually unequal pay for equal work unless she recognizes and complains about the discrimination within a few short months after it first begins.â€
Ledbetter also articulates several pragmatic reasons for finding in her favor. She explained that, because the 180-day limitations period is relatively short, it is often difficult for employees to learn whether they are being paid less than their coworkers and to assess the basis for the pay disparities. Moreover, she emphasizes, discrimination in pay generally occurs in small increments and “takes its toll at the margins accumulating effects that become visible, and then suspicious, only with time.†Additionally, she notes, claims of pay discrimination are already limited by the doctrine of laches and the statutory limits on backpay awards.
In its brief, Goodyear contends that Ledbetter’s intentional pay discrimination claim is time-barred because neither the district court nor the Eleventh Circuit found the most recent pay decisions were discriminatory. It characterizes its pay system as a “facially neutral practice†where an employee’s existing pay rate is used as a starting point for pay decisions and asserts that Ledbetter had no evidence the system was being administered with discriminatory intent during the limitations period. Ledbetter cannot, in Goodyear’s view, “revive an intentional discrimination claim for which no timely charge was filed merely by arguing that an unlawful action outside the limitations period continues to have adverse effects in later time periods.â€
According to Goodyear, the underlying purpose of the limitations period in section 706(e) is to encourage prompt compliance and reduce litigation. To allow the petitioner to look beyond the limitations period would defeat this purpose and would run contrary to the rule that a plaintiff must show a current instance of purposeful discrimination, not simply a current policy applied indiscriminately to the results of past discrimination. Permitting such claims, argues Goodyear, would impose an unfair burden on employers who would be required to evaluate periodically all current and prior pay decisions to ensure they were not based on discriminatory factors.
Goodyear argues that there is no basis for treating prior pay decisions any differently from other employment decisions, such as hiring, promoting, and firing, which are described in Morgan as discrete acts. It distinguishes Bazemore as involving a claim that concerned allegations of present intentional discrimination in pay and contends that Bazemore “does not establish the timeliness of a claim based only on the effects of past discrimination.†Additionally, Goodyear points out that the limitations period was not at issue in Bazemore because claims brought by the United States were not subject to section 706(e).
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