Tuesday, January 27, 2009


(this was my letter to comment on the Washington Post Article which reported that Congress had just passed and sent to President Obama's desk an amendment which reverses a Supreme Court decision in the Lilly Ledbetter case two years ago which ruled that if an employer could keep secret the fact that an employee's pay was less than other employees of a different gender or race for a 180 day period, then the employer was home free- it could continue discriminating against that employee and pay her less money for equal work forever. LEDBETTER v. GOODYEAR TIRE & RUBBER CO., 05-1074 127 S.Ct. 2162 (U.S. 5-29-2007)

Your article should have included a statement that the Democratic majority was returning the law to what the Supreme Court- and Congress when it enacted Title VII in 1964- had originally intended, which was that any act of discrimination, even if it was repeated, was a new cause of action. In 1986 the Supreme Court ruled in a case called Bazemore v. Friday, 478 U.S. 385 (1986) at pages 395-396:

"Each week's paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII, regardless of the fact that this pattern was begun prior to the effective date of Title VII."

This was a very obvious and common sense rule. No employer should have been immunized from suit simply by keeping employees' pay a secret, which many companies routinely do- they sometimes have express policies prohibiting employees from discussing their pay with each other. It takes a truly devious mind to presume that Congress intended that companies would possess a "get out of jail free" card if they could successfully hide a discriminatory pay structure for the first 6 months it was put into place.

This longstanding (43 years) rule was only overturned when five "conservative" members of the Court decided that stare decisis (prior precedential rulings that should have been binding on the Court) were not as important as their ideological opposition to Title VII and their fealty to their perception of the financial interests of large corporations.

Any law professor or Title VII litigation expert (I'm both) can explain this further if you need it. But it's a fallacy to say that a "liberal" Congress or a "liberal" president is "changing" the law. It is more correct to say that the correct application of pay discrimination law was restored by a conservative Congress and conservative president (with small "c's") who respect the law-- both as to its plain meaning, and as to its long held interpretation.


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