One can understand the frustration that led Justice Ruth Bader Ginsburg to issue her dissent orally, from the bench, last week in the case of Ledbetter v. Goodyear Tire and Rubber. But her argument is properly with the law as written rather than with the court’s majority opinion.
If the law offers an insufficient remedy for an employee who believes she was discriminated against on pay because she is a woman, it is up to Congress, not the high court, to change the law.
Lilly Ledbetter worked 19 years as the only female supervisor in a Goodyear plant in Alabama. After retiring, she found she had gotten lower raises and therefore had been paid less than her male counterparts. She sued under the 1964 Civil Rights Act, alleging illegal pay discrimination based on sex.
However, that law required employees to raise discrimination issues within 180 days of their occurrence. A jury ruled in Ledbetter’s favor, but the appeals court ruled there was no evidence of discrimination during the six months prior to her filing suit, so she had no case.
By a 5-4 vote (Alito, Roberts, Thomas, Scalia and Kennedy vs. Ginsburg, Stevens, Breyer and Souter), the U.S. Supreme Court agreed.
Justice Ginsburg said in her dissent that the majority opinion “overlooks common characteristics of pay discrimination.” Given the secrecy about salaries in most companies, she said, a person might not even know about getting a lower raise for 180 days.
Justice Ginsburg may be right about that. Justice Alito, however, wrote for the majority that this was a “policy argument” with “no support in the statute.” He was right in law and right in the role of the court.
One might well argue that the six-month time limit in the 1964 statute was unrealistically short, but one can certainly see reasons for some time limit. Without such a limit companies might have to defend against suits alleging discrimination committed 20 or 30 years before, long after records might well have been destroyed.
The law obviously did not intend to authorize unlimited lawsuits.
As Roger Pilon, vice president for constitutional studies at the libertarian Cato Institute, said, “The four justices who dissented in this case give us a textbook example of judicial activism, namely reading the law as they wish it were written rather than as it was written.”