Cose: The Supreme Court's Worrying Stance on Discrimination

In the end, Lilly Ledbetter was just too late. her complaint was "untimely." So declared Samuel Alito in a 5-4 decision explaining why the Supreme Court was rejecting her discrimination claim under Title VII of the Civil Rights Act. Alito did not dispute that Ledbetter might have been wronged during the many years she worked as a supervisor for the Goodyear Tire and Rubber Co.; it's conceivable she would have been better paid had she not been targeted after rejecting the sexual advances of a superior. But since the alleged offenses took place years ago and the supposed offender had died, she was wrong to expect help at this juncture. Instead of waiting until she retired in 1998, she should have filed within six months "after each allegedly discriminatory employment decision was made and communicated to her."

It was a harsh and rigid reading of the law—one with which Ruth Bader Ginsburg forcefully disagreed. In her dissent read from the bench, Ginsburg accused the majority of being out of touch with reality and with the intent of Congress. Given the generally confidential nature of salaries, it was unrealistic, she argued, to expect employees to immediately recognize they were victims of discrimination. And it was unfair to punish them for delaying legal action as they gave employers the benefit of the doubt. Ginsburg disagreed with the notion that pay disparities were sanctioned as long as the original decisions creating those disparities lay beyond the deadlines of the law. Other liberal court watchers were just as dismayed. Caroline Fredrickson, director of the ACLU's Washington legislative office, called it an "astonishing decision" and a sign that the "activist court" was out to dismantle legal protections against job discrimination. The decision "reflects a poor understanding of the real problems with long-term pay discrimination," said Sen. Tom Harkin, as a group of Democratic legislators (including Hillary Clinton) announced plans to introduce legislation to nullify its impact.

Some experts agreed with Alito's conclusion that Ledbetter's timing was bad—not because of the law, but because the high court has changed. "I have to wonder if it would have come out the other way [had Sandra Day O'Connor still been on the court]," observed Maria Blanco, executive director of the Lawyers' Committee for Civil Rights of the San Francisco Bay Area. The presumption is that O'Connor (whom Alito replaced in January 2006) would have sided with Ledbetter. But that is far from a sure bet. Bill McNeill, head of the employment-law center at the Legal Aid Society of San Francisco, noted that O'Connor did not seem to have a problem with a strict interpretation of Title VII's deadlines. In a 2002 case concerning a black employee of Amtrak who claimed to be a victim of discrimination and a hostile work environment, Clarence Thomas wrote a decision that agreed with enforcing the legal deadlines—but he also argued for a certain flexibility. Proper consideration of a hostile-work-environment claim, he argued, might necessitate considering acts "outside the statutory time period." O'Connor dissented from that part of the decision "because I believe a similar restriction applies to all types of Title VII suits, including those based on a claim that a plaintiff has been subjected to a hostile work environment."

Given that dissent, it's conceivable that O'Connor could have gone either way on this case. The idea that she was predictably on the side of the liberal angels is mostly a myth. But she clearly had a world view that accepted the reality of inequality—and the need to do something about it. In her 2003 decision in favor of the University of Michigan's law-school admissions program, she endorsed the idea of using limited racial preferences because she found the real-world consequences of not doing so to be unacceptable.

This new court—it may come to be known as the Alito Court—seems less concerned about such things. In an era when a woman—or, for that matter, a black man, a Hispanic or a Mormon—can become president of the United States, there is perhaps something quaint about the notion that members of any group might need strong protection against discrimination. Prejudice is supposed to be so passé; there are better ways to spend one's time than trying to figure out how to deal with past discrimination—or so the majority of those on this current court seem to assume.

The Ledbetter decision was far from a legal slam-dunk. As the various partisans noted, there is ample precedent on both sides. Still, the decision was striking for its lack of empathy, for its almost mocking view of Ledbetter's efforts to seek redress and for its lack of connection to the world as experienced by those totally lacking real power. It is not a reassuring harbinger of what may come from this court—particularly when the impact of discrimination seems to know no time limits.

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