Ledbetter complained to the Equal Employment Opportunity Commission in March 1998. She charged that, in violation of Title VII, Goodyear paid her a discriminatorily low salary because of her sex. The charge was eventually brought to court and tried to a jury. The jury found it “more likely than not that [Goodyear] paid [Ledbetter] a[n] unequal salary because of her sex.” The Court today nullifies that verdict, holding that Ledbetter’s claim is time barred.
Title VII provides that a charge of discrimination “shall be filed within [180] days after the alleged unlawful employment practice occurred.” Ledbetter charged, and proved at trial, that the paychecks she received within the 180-day filing period were substantially lower than the paychecks received by men doing the same work. Further, she introduced substantial evidence showing that discrimination accounted for the pay differential, indeed, that discrimination against women as supervisors was pervasive at Goodyear’s plant. That evidence was unavailing, the Court holds, because it was incumbent on Ledbetter to file charges of discrimination year-by-year, each time Goodyear failed to increase her salary commensurate with the salaries of her male peers. Any annual pay decision not contested promptly (within 180 days), the Court affirms, becomes grandfathered, beyond the province of Title VII ever to repair.
Title VII was meant to govern real-world employment practices, and that world is what the Court today ignores. Pay disparities often occur, as they did in Ledbetter’s case, in small increments; only over time is there strong cause to suspect that discrimination is at work. Comparative pay information is not routinely communicated to employees. Instead, it is often hidden from the employee’s view. Small initial discrepancies, even if the employee knows they exist, may not be seen as grounds for a federal case. An employee like Ledbetter, trying to succeed in a male-dominated workplace, in a job filled only by men before she was hired, understandably may be anxious to avoid making waves.
Pay discrimination that recurs and swells in impact is significantly different from discrete adverse actions promptly communicated and “easy to identify” as discriminatory. Events in that category include firing, denial of a promotion, or refusal to hire. In contrast to those unambiguous actions, until a pay disparity becomes apparent and sizable, an employee is unlikely to comprehend her plight and, therefore, to complain about it. Ledbetter’s initial readiness to give her employer the benefit of the doubt should not preclude her from later seeking redress for the continuing payment to her of a salary depressed because of her sex.
Yet, as the Court reads Title VII, each and every pay decision Ledbetter did not promptly challenge wiped the slate clean. Never mind the cumulative effect of a series of decisions that, together, set her pay well below that of every male area manager. Knowingly carrying past pay discrimination forward must be treated as lawful. Ledbetter may not be compensated under Title VII for the lower pay she was in fact receiving when she complained to the EEOC. Notably, the same denial of relief would occur had Ledbetter encountered pay discrimination based on race, religion, age, national origin, or disability.
This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute’s broad remedial purpose. In 1991, Congress passed a Civil Rights Act that effectively overruled several of this Court’s similarly restrictive decisions, including one, Lorance, upon which the Court relies today. Today, the ball again lies in Congress’ court. As in 1991, the Legislature has cause to note and correct this Court’s parsimonious reading of Title VII.
Bench Announcement
Vance v. Ball State University
Monday, June 24, 2013
On June 24, Justice Ginsburg summarized the dissents on behalf of herself and the three liberal Justices in two cases, thematically related, in which the Court split five to four.II Both, like Ledbetter, involved a “parsimonious reading of Title VII” by the majority, which Justice Ginsburg and her fellow dissenters viewed as oblivious to “real world employment practices” and congressional intent. The portion of the announcement discussing the first of those two cases, Vance v. Ball State University, follows.
In two of the decisions announced today, the Court has corralled Title VII, an Act designed to stop discrimination on the basis of race, color, religion, sex, or national origin in our nation’s workplaces. Both decisions dilute the strength of Title VII in ways Congress could not have intended. For that reason, Justices Breyer, Sotomayor, Kagan, and I dissent.
The decision Justice Alito just announced, Vance v. Ball State University, answers the question: Who is a supervisor for Title VII purposes? The answer is important, because this Court has held that an employer is vicariously liable for a supervisor’s harassing conduct. If the harasser is a coworker, and not a supervisor, however, we have held that the employer is not responsible unless the victim of the harassment proves negligence on the part of the employer. To do so, the employee must show that the employer knew or should have known of the harassing conduct and failed to stop it. That is a burden not easily carried. An employee may have a reputation as a harasser among those in his vicinity, but if no complaint makes its way up to management, the employer will escape liability.
The supervisor/coworker distinction makes sense. An employee can walk away from a harassing coworker, or tell him to “buzz off.” The harassment of a supervisor, however, is harder to avoid given the control rein held by an in-charge superior.
So who qualifies as a supervisor? All agree that an employee with authority to take tangible employment actions, that is, to hire, fire, promote, or demote qualifies. In addition, the Equal Employment Opportunity Commission (EEOC), the agency charged with interpretation and administration of Title VII, defines as a supervisor one authorized “to direct [other] employee[s’] daily work activities.” The EEOC’s definition was accepted by both plaintiff and defendant in this case. Remarkably, the Court rejects it and confines the supervisory category to those authorized to take tangible employment actions.
Who does that leave out? A typical, and not at all hypothetical, example: A female highway maintenance worker is given assignments by employees called “lead workers.” Sex-based invectives are hurled at the female worker and a pornographic image is taped to her locker. The lead worker forces her to wash her truck in subzero weather, assigns her to undesirable yard work instead of road-crew work, and directs other employees to give her no aid in fixing a malfunctioning heating system in her truck. Harassing conduct? Concededly yes. Was the lead worker in charge of the harassed employee’s daily work activities? Certainly. But the lead worker lacked authority to hire, fire, or take other tangible employment actions. So, under today’s decision, the lead worker would be ranked merely a coworker, not a supervisor.
As anyone with employment experience can easily grasp, in-charge employees authorized to assign and control subordinate employees’ daily work are aided in accomplishing their harassment by the superintending position in which their employer places them, and for that reason, the employer is properly held responsible for the misconduct. The Court’s disregard for the realities of the workplace means that many victims of workplace harassment will have no effective remedy. The result, Title VII’s capacity to prevent and redress discriminatory conduct is notably diminished.
Six years ago, in Ledbetter v. Goodyear Tire and Rubber Company, the Court read Title VII in a similarly restrictive way. In 2009, Congress corrected that error.
Today, the ball again lies in Congress’ court to correct this Court’s wayward interpretations of Title VII.
Bench Announcement
Shelby County v. Holder
Tuesday, June 25, 2013
The Voting Rights Act bans any “standard, practice, or procedure” that “results in a denial or abridgment of the rights of any citizen . . . to vote on account of race or color.” Under one provision of the Act, states and political subdivisions with a history of curtailing the voting rights of African-Americans were required to submit all proposed changes in voting
procedures to the Justice Department for approval before putting them into effect, a procedure called “preclearance.” Shelby County, Alabama, one such jurisdiction, challenged the constitutionality of the preclearance requirement and the formula for selecting the jurisdictions subjected to that requirement.
Five members of the Court, in an opinion by Chief Justice Roberts, declared the formula antiquated and unconstitutional in light of significantly improved “current conditions.” Writing for the four dissenting Justices, Justice Ginsburg wrote a thirty-seven-page dissent whose core argument was summed up in this single, memorable sentence: “Throwing out preclearance when it has worked and is continuing to work is like throwing away your umbrella in a rainstorm because you are not getting wet.” The formula, she said, “accurately identifies the jurisdictions with the worst conditions of voting discrimination.” Her dissent in Shelby County, as Justice Ginsburg told her students in her lecture on the role of dissenting opinions, involves constitutional interpretation, “and therefore appeals to the intelligence of a future day.”
In the following bench announcement summarizing her dissent, Justice Ginsburg’s meticulous attention to telling details and her deep commitment to racial equality are both on display.
The majority and the dissenters agree on two points. First, race-based voting discrimination still exists; no one doubts that. Second, the Voting Rights Act addresses an extraordinary problem—a near century of disregard for the dictates of the Fifteenth Amendment—and Congress has taken extraordinary measures to meet the problem. Beyond those two points, the Court divides sharply.
Congress’ failure to redo the coverage formula, the Court holds, renders inoperative the preclearance remedy of §5, the provision far more effective than any other in securing minority voting rights and stopping backsliding. Justices Breyer, Sotomayor, Kagan, and I are of the view that Congress’ decision to renew the Act and keep the coverage formula was an altogether rational means to serve the end of achieving what was once the subject of a dream: the equal citizenship stature of all in our polity, a voice to every voter in our democracy undiluted by race.
Most fundamentally, we see the issue as a “who decides” question. In this regard, we note that the very First Amendment to our Constitution exhibits a certain suspicion of Congress. It instructs: Congress shall make no law abridging the freedom of speech or of the press. The Civil War Amendments are of a distinctly different thrust. Thus the Fifteenth Amendment instructs that the right to vote shall not be denied or abridged on account of race, and it vests in Congress, as do the Thirteenth and Fourteenth Amendments, power to enforce the guaranteed right by appropriate legislation. As the standard-setting decision, South Carolina v. Katzenbach, put it: “As against the reserved powers of the States, Congress may use any rational means to effectuate the constitutional prohibition of race discrimination in voting.”
Congress sought to do just that in 1965, when it initially passed the Voting Rights Act, and in each reauthorization, including the most recent one. Indeed, the 2006 reauthorization was the product of the most earnest consideration. Over a span of more than 20 months, the House and Senate Judiciary Committees held 21 hearings, heard from scores of witnesses, received numerous investigative reports and other documentation showing that “serious and widespread intentional discrimination persists in covered jurisdictions.”
In all, the legislative record filled more than 15,000 pages. Representative Sensenbrenner, then chair of the House Judiciary Committee, described the record supporting reauthorization as “one of the most extensive considerations of any piece of legislation that the United States Congress has dealt with in the 271/2 years” he had served in the House. The reauthorization passed the House by a vote of 390 to 33. The vote in the Senate was 98 to 0. President Bush signed the reauthorization a week after he received it, noting the need for “further work . . . in the fight against injustice” and calling the extension “an example of our continued commitment to a united America where every person is treated with dignity and respect.”
Why was Congress intent on renewing §5 particularly? As the Chief Justice explained, §5 requires covered jurisdictions to obtain preclearance before making changes in voting laws that might introduce new methods of voting discrimination. Congress found, first of all, that §5 had been enormously successful in increasing minority registration and access to the ballot. But it also learned how essential §5 was to prevent a return to old ways. In 1995, for example, the state of Mississippi was stopped by §5 from bringing back its Jim Crow–era dual voter registration system, and in 2006, Texas was stopped from curtailing early voting in a predominantly Latino district, in defiance of this Court’s order to reinstate the district after Texas tried to eliminate it. Congress confronted similar examples of discrimination in covered jurisdictions by the score.
Of signal importance, Congress found that as registration and voting by minority citizens impressively increased, other barriers sprang up to replace the tests and devices that once impeded access to the ballot. These second generation barriers included racial gerrymandering, switches from district-by-district voting to at-large voting, discriminatory annexations—methods more subtle than the visible methods used in 1965, but serving effectively to diminish a minority community’s ability to exercise clout in the electoral process.
Congress retained §5 to put down the second-generation barriers before they got off the ground.
But the coverage formula is no good, the Court insists, for it is based on “decades-old data and eradicated practices,” so Congress must start from scratch. Suppose the record shows, however, as engaging with it would reveal, that the formula continues to identify the jurisdictions of greatest concern, jurisdictions with the worst current records of voting discrimination. If Congress could determine from the reams of evidence it gathered that these jurisdictions still belonged under the preclearance regime, why did it need to alter the formula?
Bear in mind that Shelby County has mounted a facial challenge to the reauthorization. By what right does the Court address the County’s claim? On other days, this Court has explained that facial challenges are the most difficult to mount successfully. The challenger will not be heard to complain on the ground that the statute in question might be applied unconstitutionally to others in situations not before the Court. Congress continued preclearance over Alabama, including Shelby County, only after considering barriers there to minority voting clout. There were many, they were shocking, and they were recent. They are spelled out in the dissenting opinion. What has become of the Court’s usual restraint, its readiness to turn away facial attacks unless there is “no set of circumstances . . . under which [an] Act would be valid”?
The Court points to the success of §5 in eliminating the tests and devices extant in 1965 and in increasing minority citizens’ registration and ballot access. Does that provide cause to believe §5’s potent remedy is no longer needed? The notion that it does is hardly new. The same assumption, that the problem can be solved when particular methods of voting discrimination are identified and eliminated, was indulged and proved wrong repeatedly prior to enactment of the Voting Rights Act. That is why the 2006 renewal targeted no particular practices, but instead aimed to reach, in all their variety and persistence, measures that effectively impaired minority voting rights. And it is why Congress found in the second-generation barriers demonstrative evidence that a remedy as strong as preclearance remains vital and should not be removed from the federal arsenal.
It was the judgment of Congress that “40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th Amendment.” That judgment of the body empowered to enforce the Civil War Amendments “by appropriate legislation” should garner this Court’s unstinting approbation. The great man who led the march from Selma to Montgomery and there called for the passage of the Voting Rights Act foresaw progress, even in Alabama. “The
arc of the moral universe is long,” he said, but “it bends toward justice,” if there is a steadfast commitment to see the task through to completion. That commitment has been disserved by today’s decision.
Bench Announcement
Abigail Fisher v. University of Texas at Austin
Monday, June 24, 2013
The Top Ten Percent Law, guaranteeing Texas high school seniors in the top 10 percent of their class automatic admission to a Texas university, fills three-quarters of the University of Texas freshman class. To select the remaining members of its entering class, UT evaluates applicants on factors including their talents, leadership qualities, family circumstances, and race. Abigail Fisher, a rejected white applicant who ranked below the top 10 percent of her class, sued the university for race discrimination, claiming that the use of race as a factor in the selection process discriminated against her in violation of the Equal Protection Clause.
The District Court and the Fifth Circuit Court of Appeals ruled in favor of the University, citing Grutter v. Bollinger, a 2003 Supreme Court case holding that the University of Michigan Law School’s holistic assessment of student applicants, in which race was just one “plus factor,” was sufficiently targeted (“narrowly tailored”) to achieve its compelling interest in ensuring a diverse student body. (By contrast, in Grutter’s companion case, Gratz v. Bollinger, the Court found that the University of Michigan’s undergraduate admissions process, which assigned numerical points for minority race or ethnicity, failed to pass the “narrowly tailored” requirement and was therefore unconstitutional.)
In Abigail Fisher’s case against the University of Texas, the Supreme Court majority, concluding that the Fifth Circuit had been insufficiently strict in its application of the Grutter/Gratz precedent, vacated the Circuit decision and sent the case back to the Fifth Circuit to correct its legal error. Justice Ginsburg, the sole dissenter, not only viewed the lower federal court as faithful to the Grutter precedent and would have upheld its ruling, but felt strongly enough to announce her dissent from the bench. In the process, she also challenged the majority’s characterization of the Top Ten Percent law as racially “neutral.” Both of the University’s admissions methods were adopted with an eye toward increasing racial diversity, she argued, and both were constitutionally legitimate.
My Own Words Page 29
