May 30, 2007

Judicial Modesty In Action

The Supreme Court decision yesterday to reject the pay-equity lawsuit brought by a Goodyear Tire supervisor shows that the Bush administration will have a lasting legacy of judicial modesty, thanks to its appointments on the Court. Instead of rewriting a poor law, the Court followed it -- and pushed the mess Congress created back in its own lap:

The Supreme Court on Tuesday made it harder for many workers to sue their employers for discrimination in pay, insisting in a 5-to-4 decision on a tight time frame to file such cases. The dissenters said the ruling ignored workplace realities.

The decision came in a case involving a supervisor at a Goodyear Tire plant in Gadsden, Ala., the only woman among 16 men at the same management level, who was paid less than any of her colleagues, including those with less seniority. She learned that fact late in a career of nearly 20 years — too late, according to the Supreme Court’s majority.

The court held on Tuesday that employees may not bring suit under the principal federal anti-discrimination law unless they have filed a formal complaint with a federal agency within 180 days after their pay was set. The timeline applies, according to the decision, even if the effects of the initial discriminatory act were not immediately apparent to the worker and even if they continue to the present day.

From 2001 to 2006, workers brought nearly 40,000 pay discrimination cases. Many such cases are likely to be barred by the court’s interpretation of the requirement in Title VII of the Civil Rights Act of 1964 that employees make their charge within 180 days “after the alleged unlawful employment practice occurred.”

Workplace experts said the ruling would have broad ramifications and would narrow the legal options of many employees.

Does the decision ignore workplace realities? Probably. As Ruth Bader Ginsburg noted in her dissent, salary increases do not get published, so any apparent inequity would take quite some time to discover. Further, it would take a long time to prove a pattern of such discrimination for an employer, especially one (like Goodyear) with many facilities in many jurisdictions. In fact, even for one employee, it would likely take more than one review cycle to determine whether discrimination exists or just one poorly-executed review.

And the response to that for the Court should be: Write better laws. It is not the job of the Supreme Court to rewrite poorly-constructed legislation. Congress obviously intended for a short window of opportunity for these complaints, for whatever reason they had. The Supreme Court follows the law, unless the law is expressly unconstitutional. Fine-tuning dumb laws and badly-written legislation isn't the purview of the Court, but rather the responsibility of Congress.

Obviously, Congress needs to revisit this piece of legislation. Thankfully, we now have a Court which forces America's elected representatives to do their job, primarily by refusing to legislate from the bench. This gives hope that the last fifty years of judicial legislation have come to an end.


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Comments (13)

Posted by PersonFromPorlock | May 30, 2007 8:15 AM

Thankfully, we now have a Court which forces America's elected representatives to do their job...

One Robin doesn't make a Spring; we have no way of knowing, yet, if this was judicial modesty in action or just the majority hanging its coat on a convenient hook.

Posted by km | May 30, 2007 8:41 AM

This is a good sign.

Judges following the law instead of making it, even when they think the case should have come to a different result. Legislators have gotten horribly sloppy over the activist years of the courts. If this is a trend, it might force the legislators to do their jobs correctly.

Posted by jpe | May 30, 2007 9:47 AM

The statute seems very clear to me: unequal pay is illegal. It's not the initial decision to pay less, but the ongoing unequal payment.

I can appreciate the virtue in kicking an ambiguous statute back to the Congress, but this just wasn't (as virtually every other court has found).

Posted by unclesmrgol | May 30, 2007 9:59 AM

This is a bad law at its finest, and a bad decision too. The decision guts Title VII, rendering it unenforceable, which I am sure is NOT the intent of Congress. I thought strict construction attempted to divine the intent of the framers of a law, and to enforce the law within that framework. This decision definitely does not do that.

Normally, the litigation clock starts when the damage is first discovered, not when it occurs. The Court have opened the gates to an industry of preemptive lawsuits, because if employees cannot know they have grounds within 180 days, then at least one employee in a protected class must file suit within 180 days of receiving any pay raise.

Most employers keep their aggregate salary statistics a secret, thus making it easy to defeat Title VII. Additionally, in this case the illegal act of the employer is a continuous occurrence, occurring with every paycheck, so I would say the woman still had a case if, within the past 180 days, her salary situation had not been rectified.

Posted by contemptofcourt | May 30, 2007 10:08 AM

uncle is spot on.

My first reaction, as a litigator, reading the USSCt opinion was "Wow, what a can of worms they just opened." In their zeal to kick this back to congress, they just sanctioned hundreds of thousands of preemptive federal complaints. And while companies may be patting themselves on the back today, they aren't going to like the consequences of this opinion: dealing with more formal complaints, and a greater degree of discovery as to salary structure and rationale therefore.

Posted by exdem13 | May 30, 2007 10:47 AM

Heh, good one on the Court tossing the grenade back to Congress. Finally, a Supreme Court that doesn't legislate from the bench, but forces the Legislature to do it. Heh, that's right kiddies, don't go to court, call your Congressmen & Senators now!! Make those bastards do their jobs!

At least that's one thing Dubya did right, other than authorize the world-wide Jihadi beatdown & seeing Saddam do the Tyburn Jig.

Posted by Jack Okie | May 30, 2007 12:36 PM

Perhaps the same modesty governs GWB with regard to congressional spending and BCRA (sadder but wiser - I would have bet serious money that the Supremes would toss out BCRA). Why should this president or any president spend precious political capital trying to be the only adult on the playground? The congress-critters constituents elected them - if the folks don't like what was done, they can send some new faces to Washington.

Maybe in this age of victimology we need rehab for these poor congress-persons: "Help me before I spend again!".

Posted by ExRat | May 30, 2007 2:37 PM

Thankfully, we now have a Court which forces America's elected representatives to do their job, primarily by refusing to legislate from the bench.

Someone smarter and better informed than I could probably make a cogent argument that Congress has come to rely on the Court fixing the bad legislation that Congress spews out. Heaven forbid that our elected representatives should have to think things all the way through and actually consider the unintended consequences of their work product. To do so would slow things down so much that hardly any bill would ever come to a vote, and the political consequences of that would be too dire to imagine. (/cynicism)

Posted by Steve | May 30, 2007 3:16 PM

Gee, couldn't we just let employers pay employees what they want to pay, and couldn't the employees go work somewhere else if they didn't like it? Why is this any business of the Federal Government?

Posted by ck | May 31, 2007 12:00 AM

Yeah let employers pay what they want to pay - LOL - that worked real well before unions huh? And, what's that? You hate unions too?

As for Captain's post - That's a very optimistic view of the situation. You were spot on that the lady in question got screwed out of her rightful wages (If she's being discriminated against because of race or gender, then the company has no right to be in the U.S. Steve, we don't condone discrimination).

I don't agree with your opinion though. I think the court has a right to say that discrimination is unconstitutional no matter what the law says the time frame should be. Statutes of Limitation are even thrown away at times because of the vulgarity of the crime or quite a few other things. The court has basically handed the perpetrator of the crime a victory.

I'm definitely not a scholar on supreme court case history, but I would think if 4 of the justices thought it acceptable to say the time frame given was not just, then there was probably some precedence for saying the law was unjust.

Posted by FilthyMcNasty | May 31, 2007 12:32 PM

"You hate unions too? "

You mean those organizations that demand higher wages but don't deliver on the quality, timeliness, and accuracy of the job specified?

Posted by David Schraub | May 31, 2007 7:09 PM

You should be fairer here, Ed. For one, Justice Ginsburg specifically requested in her dissent that Congress fix the law to clarify it. I've already written to my Congressman (Chris Van Hollen [D-MD]) to try and do just that, but he's not going to be the problem. If you're making the "Congress should be the one fixing it" argument in good faith, then I expect to see you using whatever influence you have among the right to get them to lobby that side of the aisle. Otherwise, you're hiding behind weak arguments of "judicial restraint" to shield poor legislation.

And for two, there is nothing intuitive about the way the statute is written or (definitely) what it's purpose is that makes the majority's interpratation a good one. To act as if this is one side trying to write legislation and the other just reading it is wildly oversimplifying the deal here.

Posted by PG | June 1, 2007 10:32 AM

Capt. Ed, if you think this was a correct decision as a matter of precedent and statute, could you explain what happened to Bazemore? Or do you think that precedent ought not be followed? Alito's attempt to distinguish it was wholly unconvincing -- I'd almost rather have an honest, Thomas-style "yeah we're just going to throw out decades-old precedent, deal with it" decision than one that attempts to obfuscate what happened in the prior case.