by Irin Carmon
By the time she was staring down the Corinthian columns of the Supreme Court, a federal appeals court had told Ledbetter she had waited too long to sue. Ledbetter’s lawyers protested that each paycheck was itself an act of discrimination that restarted the clock.
At oral argument, Ledbetter had watched RBG, alone among the men of the bench. “We were around the same age, and she too had been one of the first women to break into her profession,” Ledbetter later wrote. “I might have been on the factory floor as she walked the hallowed halls of the American justice system, but I imagined that men in ties and men in jeans can act just the same.”
Unluckily, with O’Connor gone, business-friendly Alito got the majority opinion. He wrote, clinically and brusquely, that Ledbetter should have filed a charge of discrimination “within 180 days after each allegedly discriminatory employment decision was made and communicated to her.”
As RBG read another dissent from the bench, it was clear that she felt the same kinship Ledbetter had. “It’s the story of almost every working woman of her generation, which is close to mine,” RBG later said. “She is in a job that has been done by men until she comes along. She gets the job, and she’s encountering all kinds of flak. But she doesn’t want to rock the boat.” RBG was now in steady enough a position to rock that boat.
FROM RBG’S ORAL DISSENT IN LEDBETTER V. GOODYEAR TIRE AND RUBBER COMPANY*
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In our view, the court does not comprehend or is indifferent to the insidious way in which women can be victims of pay discrimination.
RBG was the only woman on the court at this time and was clearly trying to tell the other male justices that they have no clue what it’s like to be a woman in the real world, working in a man’s profession—like Lilly Ledbetter at Goodyear Tire and like Ruth Bader Ginsburg throughout her career.
Today’s decision counsels: sue early on when it is uncertain whether discrimination accounts for the pay disparity you are beginning to experience. Indeed, initially you may not know that men are receiving more for substantially similar work.
Ironic coming from a court that has steadily made it clear that it wants fewer and fewer civil rights suits in the federal courts.
Of course, you are likely to lose such a less-than-fully-baked case.
More real talk about how litigation works. It is almost impossible to successfully sue someone as soon as the first instance of discrimination occurs.
If you sue only when the pay disparity becomes steady and large enough to enable you to mount a winnable case, you will be cut off at the court’s threshold for suing too late. That situation cannot be what Congress intended when in Title VII it outlawed discrimination on the basis of race, color, religion, sex, or national origin in our nation’s workplaces.
This refers to Title VII of the Civil Rights Act of 1964. The catch 22 effectively means no one could successfully sue for employment discrimination.
. . . Title VII was meant to govern real world employment practices and that world is what the court ignores today.
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 employees’ view.
This is one of the employer’s biggest advantages when it comes to pay equity. Imagine how the world of antidiscrimination law would be different if employee pay were public information, or, at least, open to other employees.
Small initial discrepancies, even if the employee knows they exist, may not be seen as grounds for a federal case.
LILLY LEDBETTER: “Justice Ginsburg hit the nail on the head. . . . You can’t expect people to go around asking their coworkers how much they are making. Plus, even if you know some people are getting paid a little more than you, that is no reason to suspect discrimination right away. Especially when you work at a place like I did, where you are the only woman in a male-dominated factory, you don’t want to make waves unnecessarily. You want to try to fit in and get along.”
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.
Sounds a lot like RBG’s own early life.
. . . 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.
Damned if you do, damned if you don’t—if she complains early on, she’s labeled a troublemaker and suffers the consequences; if she waits, she loses her claim when she ultimately finds out there’s been pay inequity that began a long time ago.
Yet, as the court reads Title VII, each and every pay decision Ledbetter did not properly 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.
Each paycheck is a discrete act that employers are accountable for. As RBG sees it, if employers want secrecy, they need to be held responsible for what they hide.
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 if Ledbetter encountered pay discrimination based on race, religion, age, national origin, or disability.
Pay secrecy affects everyone, not just women under Title VII and, ultimately, not just with respect to unlawful discrimination.
This is not the first time this court has ordered a cramped interpretation of Title VII, incompatible with the statute’s broad remedial purpose.
This court has a history of getting Title VII wrong by not understanding that this law is supposed to help victims of discrimination, not hinder them.
In 1991, Congress passed a Civil Rights Act that effectively overruled several of this court’s similarly restrictive decisions, including one on which the court relies today.
Today, the ball again lies in Congress’s court. . . . The legislature has cause to note and to correct this court’s parsimonious reading of Title VII.
The Democratic-controlled Congress picked up the ball that time, but by 2015, RBG told me, “The current Congress is not equipped really to do anything. So the kind of result that we got in the Ledbetter case is not easily achieved today. Someday, we will go back to having the kind of legislature that we should, where members, whatever party they belong to, want to make the thing work and cooperate with each other to see that that will happen.”
Art Lien
Less than two years into its tenure, the supposedly consensus-seeking Roberts court was bitterly divided. Roberts himself was making his mark that 2006–2007 term by taking whacks at campaign-finance limits and by criticizing laws that tried to remedy racial discrimination for supposedly being racist in and of themselves. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts declared in his majority opinion striking down a school desegregation plan. RBG joined the dissents in both cases.
RBG had never before read two dissents from the bench in one term, as she did with Carhart and Ledbetter, and people noticed. Cynthia Fuchs Epstein told the New York Times, “She has always been regarded as sort of a white-glove person, and she’s achieved a lot that way. Now she is seeing that basic issues she’s fought so hard for are in jeopardy, and she is less bound by what have been the conventions of the court.” The piece was headlined “In Dissent, Ginsburg Finds Her Voice at Supreme Court.” RBG joked that the news came as a surprise to Marty.
RBG made no apologies for the discord. At the end of that term, she warned in a speech, “I will continue to give voice to my dissent if, in my judgment, the court veers in the wrong direction when impo
rtant matters are at stake.” Metaphorically, at least, the gloves were off.
THEY HAVE NEVER BEEN A THIRTEEN-YEAR-OLD GIRL
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The story of Lilly Ledbetter wasn’t over. RBG had urged Congress to take up the cause, but she had to be patient. A bill to undo the majority’s damage to antidiscrimination law died in a Republican Senate in 2008, and Bush had already said he would veto it. The election of Barack Obama changed that. Ten days into his presidency, Obama signed the Lilly Ledbetter Fair Pay Act into law, with Ledbetter beaming in red behind him. RBG put a framed copy of the law on her wall. Her ideal of a dialogue between the branches of government had been made reality.
Even so, RBG was still the only woman on the court, a struggle she found crossed ideological lines. That spring, the court heard oral argument in the case of thirteen-year-old Arizona student Savana Redding, who had been strip-searched at school because another student had claimed Redding had given her prescription-strength ibuprofen. The court had to decide whether strip-searching kids was constitutional, but that morning a few of the male justices—including at least one liberal—had trouble understanding what was so bad about what happened to Redding. “I’m trying to work out why is this a major thing to say strip down to your underclothes, which children do when they change for gym,” Breyer mused. “In my experience when I was eight or ten or twelve years old, you know, we did take our clothes off once a day, we changed for gym, OK? And in my experience too, people did sometimes stick things in my underwear—” The court erupted in uncomfortable laughter. Thomas guffawed the loudest.
Breyer tried to recover. “Or not my underwear. Whatever. Whatever.” By this point, he’d lost control of the room entirely. “I was the one who did it? I don’t know. I mean, I don’t think it’s beyond human experience.”
Redding was about the same age as RBG’s granddaughter Clara. RBG had had enough. “It wasn’t just that they were stripped to their underwear,” she eventually snapped. “They were asked to shake their bra out—to shake, stretch the top of their pants, and shake that out.”
Weeks later, David Souter announced his retirement, and RBG broke protocol. She wanted to talk about Savana Redding, even though the case hadn’t yet been publicly decided. The debacle at oral argument, she told USA Today, was “just, for me, Ledbetter repeated.” She meant the men on the court were completely divorced from women’s daily realities. “They have never been a thirteen-year-old girl,” RBG said of the other justices. “It’s a very sensitive age for a girl. I didn’t think that my colleagues, some of them, quite understood.”
They didn’t understand Savana Redding, and they didn’t listen to Ruth Bader Ginsburg. “I don’t know how many meetings I attended in the ’60s and the ’70s, where I would say something, and I thought it was a pretty good idea,” RBG said. “Then somebody else would say exactly what I said. Then people would become alert to it, respond to it.” Startlingly, the queen of collegiality now publicly accused her colleagues of repeating the bad old days. “It can happen even in the conferences in the court,” RBG continued. “When I will say something—and I don’t think I’m a confused speaker—and it isn’t until somebody else says it that everyone will focus on the point.”
That time, when RBG spoke, the men listened. On May 26, 2009, Obama nominated Sotomayor. And on June 25, the Court ruled unanimously that the school’s strip-searching of Redding had been unconstitutional. RBG later told me she had changed her colleagues’ minds. “As we live, we can learn,” she said. “It’s important to listen. So I’m very glad that case came out as it did.”
A RAGING STORM
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In 2006, Republicans and Democrats had come together to declare that even more than forty years after its passage, the Voting Rights Act was still necessary to protect minorities from disenfranchisement. A reauthorization of the 1965 legislation was unanimously approved in the Senate, passed 390–33 in the House, and signed into law by George W. Bush. However, this consensus hid a bubbling conservative rebellion. Decades earlier, a young Reagan administration lawyer named John Roberts had coauthored a memo arguing that the law should be written such that incidents of voter suppression would “not be too easy to prove, since they provide a basis for the most intrusive interference imaginable.” Apparently it was harder for Roberts to imagine the intrusiveness of being blocked from voting.
At oral argument for Shelby County v. Holder, on February 27, 2013, Scalia had a theory for why the law had been so popular in Congress. “I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement,” Scalia said. “It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.” Black people, he implied, had wrested control of the government, and the poor politicians were too scared of looking racist to do anything about it. The court had to rescue them. In the lawyer’s lounge of the court, people listening gasped aloud.
Conservatives talked a big game about the tyranny of unelected justices, but in Shelby the justices overrode elected officials to strike down a major portion of a law that helped people get access to the ballot. “The court has the reputation of being conservative, but if you take activism to mean readiness to strike down laws passed by Congress, I think the current court will go down in history as one of the most active courts in that regard,” RBG told the New York Times. Her grim predictions have come true. In the years since Shelby, states have jumped to make it harder to vote, in a passel of laws whose impact falls disproportionately on people of color and the poor. “We put down the umbrella because we weren’t getting wet,” RBG said. “But the storm is raging.”
Hallie Jay Pope
FROM RBG’S DISSENT IN SHELBY COUNTY V. HOLDER*
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“Voting discrimination still exists; no one doubts that.” But the Court today terminates the remedy that proved to be best suited to block that discrimination. The Voting Rights Act of 1965 (VRA) has worked to combat voting discrimination where other remedies had been tried and failed. Particularly effective is the VRA’s requirement of federal preclearance for all changes to voting laws in the regions of the country with the most aggravated records of rank discrimination against minority voting rights. A century after the Fourteenth and Fifteenth Amendments guaranteed citizens the right to vote free of discrimination on the basis of race, the “blight of racial discrimination in voting” continued to “infect the electoral process in parts of our country.” Early attempts to cope with this vile infection resembled battling the Hydra. Whenever one form of voting discrimination was identified and prohibited, others sprang up in its place. This Court repeatedly encountered the remarkable “variety and persistence” of laws disenfranchising minority citizens. . . . Answering that need, the Voting Rights Act became one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation’s history. Requiring federal preclearance of changes in voting laws in the covered jurisdictions—those States and localities where opposition to the Constitution’s commands were most virulent—the VRA provided a fit solution for minority voters as well as for States. Under the preclearance regime established by §5 of the VRA, covered jurisdictions must submit proposed changes in voting laws or procedures to the Department of Justice (DOJ), which has 60 days to respond to the changes. A change will be approved unless DOJ finds it has “the purpose [or] . . . the effect of denying or abridging the right to vote on account of race or color.” Ibid. In the alternative, the covered jurisdiction may seek approval by a three-judge District Court in the District of Columbia. . . . Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court’s opinion today. The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled. Instead, it relies on increases in voter registration and turnout as if that were the whole story. Without even identify
ing a standard of review, the Court dismissively brushes off arguments based on “data from the record,” and declines to enter the “debat[e about] what [the] record shows.” One would expect more from an opinion striking at the heart of the Nation’s signal piece of civil-rights legislation. . . .
RBG has vigorously defended voting rights since joining the court in 1993.
RBG is alluding to earlier federal civil rights statutes, local laws, and, most significantly, the Fourteenth and Fifteenth Amendments, which, even when combined, failed to prevent a century of voter discrimination.
As RBG notes, efforts to stamp out racial discrimination in voting were like a game of Whac-A-Mole, with new and inventive tactics deployed as soon as an existing one was outlawed.
It would be hard for RBG to overstate the importance and impact of the Voting Rights Act in transforming American democracy. Known as the “crown jewel” of the civil rights movement, Section 5 was at the heart of the VRA. As RBG notes later in her dissent, “Thanks to the Voting Rights Act, progress once the subject of a dream has been achieved and continues to be made.”
RBG is explaining the process of “preclearance.” Effectively, certain jurisdictions, largely but not exclusively in the South, had managed to avoid the constitutional mandate to end racial discrimination in voting by inventing wily schemes to suppress the minority vote. Under preclearance, those jurisdictions were required to present all voting changes to either the U.S. Department of Justice or a federal trial court in D.C., in order to determine whether the proposal would put racial minorities in a worse position, before any change could go into effect.