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« Ledbetter loses pay discrimination case | Main | ADA: Qualifications trumps reassignment right »

Some Reflections on the Ledbetter Decision
May 29, 2007 by Ross Runkel at LawMemo

"Some Reflections on the Ledbetter Decision" is the title of Paul Secunda's post at Workplace Prof Blog. He argues that today's decision in Ledbetter v. Goodyear Tire & Rubber Co (US Supreme Court 05/29/2007) was wrong.

Professor Secunda has an excellent analytical eye, and has a thoughtful and generous nature, so I enjoy jousting with him.

I thought the decision was correct, and was surprised only by the fact that four Justices didn't think so.

Paul is quite correct when he says that the main question is: "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?"

I jump off Paul's wagon when he says pay discrimination decisions are more like hostile environment claims than they are like a discrete act such as a termination or demotion. Quoting Paul: "As with hostile work environment sexual harassment claims, individual pay decisions by themselves do not have the obvious discriminatory intent that discrete acts such as terminations or failures to promote do."

Not so. In the Ledbetter case, a pay decision was made once a year, and then implemented via paychecks. One single decision. In a hostile environment case, the claim by its very nature involves a cumulation of several events that have to be added together before the environment is sufficiently hostile for a claim to arise.

It's the difference between "wham" (pay raise) and "drip, drip, drip" (hostile environment).

I think Paul and the Supreme Court dissenters have shifted the focus to the difficulty of discovery. If everyone else's pay rate is a secret, then of course it is difficult to discove a discriminatory pay increase. But the same is true in many discharge and promotion cases. It often is difficult to discover that one gender or race has been treated differently than another, and then difficult to discover the reason for the different treatment. That has never had any effect on the statute of limitations.


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