SALON

Wednesday, May 30, 2007 2:26 PM UTC

Suing paycheck to paycheck

Overruling the EEOC, the Supreme Court sets a strict, unrealistic limit on pay discrimination claims.

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Topics: Supreme Court, Broadsheet, Ruth Bader Ginsburg, Love and Sex,

If you’re being underpaid because of your gender, speak up — quick! The same Supreme Court that wants to protect dippy women from regretting certain reproductive choices has now indicated that when it comes to equal pay, we really better have our shit together. The court decided (PDF) Tuesday, along predictable 5-4 lines, that employees may not sue for pay discrimination under Title VII of the Civil Rights Act unless they have filed a formal complaint with the Equal Employment Opportunity Commission within 180 days after the pay rate is set.

The decision contradicts the paycheck accrual rule of the EEOC itself, according to which each paycheck based on a discriminatory rate (as the New York Times put it) “resets the clock” on the 180-day filing deadline. It also does not help people who work in, say, reality. As Ruth Bader Ginsburg — for whom the term “scathing dissent” has practically become Homeric epithet — pointed out, people don’t talk about salaries, or at least they’re not supposed to. It could take much longer for an employee to find out that their pay, or raise, is lower than that of others — and even longer to make 100 percent sure they have a case. For the woman in this particular case, Lilly M. Ledbetter — whose raise percentages gradually fell farther away from those of her male colleagues at the same management level — it took the better part of 20 years.

This hardly seems to be the “stale pay claim” that businesses, doing a little jig, now say they’re protected from. Ledbetter, whose $3 million award from a district court was knocked down to $360,000 and then eliminated entirely, is now pretty much SOL, as are, experts say, those who will come after her with discrimination claims based on gender as well as race and national origin. (Some are in theory protected by the Equal Pay Act, which does not have a 180-day rule, but is cumbersome in other ways and covers only gender discrimination.)

“Essentially what [the ruling] says is, if you don’t catch an employer red-handed at the moment of discrimination, if there’s a cumulative discriminatory impact, that discrimination is beyond the reach of the law,” Theodore M. Shaw, president of the NAACP Legal Defense and Educational Fund, said in a related Times piece. “That seems to me to be wrong as a matter of policy and wrong as a matter of legislative intent.” Yes, it really does.

Award-winning journalist Lynn Harris is author of the comic novel "Death by Chick Lit" and co-creator of BreakupGirl.net. She also writes for the New York Times, Glamour, and many others. More Lynn Harris.

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