Posted by: Amelia | May 31, 2007

A Tale of Two Rulings

The blogosphere is making the obvious connections between the Supreme Court’s ruling upholding the ‘partial-birth abortion’ ban (with no health exception) and this week’s blow against protection from employment discrimination. The same five conservative justices who opened the door to onerous abortion restrictions last month have now closed the window in which employees can sue their employeers for pay discrimination under Title VII of the Civil Rights Act.

True, there was always a 180-day statute of limitations, but the court bizarrely ruled that receiving unfair pay was not itself grounds for a lawsuit; rather, the 180 days must refer back to some particular decision about pay, such as an unfairly small raise. Ongoing pay discrimination is fine and dandy. So, theoretically, wouldn’t discriminatory employers be immune if they never gave a woman a raise (and therefore an opportunity to complain)? Lawyers, Guns, and Money, via Pandagon, summarizes the ridiculous decision and highlights how much a certain former Justice’s voice could have been useful in this decision:

As Ginsburg points out, this reading of the statute makes little sense; unlike a single discrete act such as a firing, an employee may not be aware of the discriminatory nature of their pay until much later, and moreover it is illogical to hold that only an initial decision to discriminate but not the discriminatory pay itself constitutes an unlawful practice. The effect of the case is to insulate employers from wage discrimination claims as long as they can hide the evidence from the employee being discriminated against for 180 days, a result contrary to the purpose of the statute that is in no way compelled by its language.

The effect of Sandra Day O’Connor being replaced by Alito is particularly stark in this case. O’Connor–who was offered only secretarial jobs after graduating third in her Stanford Law class–had a good record on gender discrimination, while Alito’s record on both gender issues and civil rights claims more broadly is atrocious.

The ruling is just another in a long tradition of blaming the victims for their own pay discrimination. If she didn’t complain about it within 180 days, she must have chosen to work for less pay! And the pay gap is just a result of women choosing the wrong professions (and then “opting out” of even those).

Fortunately there is a solution. As the New York Times editorial page pointed out today, Congress can undo the damage by amending the Civil Rights Act. Hillary Clinton and other Democrats in Congress are already talking about doing just that. Let’s hope there’s the political will to actually do it. And while you’re at it, how about canceling that abortion restriction? Thanks!



  1. Yeah.. the supreme court needs to over-rule the right to stick a probe in a babies skull and suck out all of it’s brains to watch it go limp and die.

    It’s should be a right to choose murder!!

  2. Wow, I got a troll! And after only five posts! This is totally exciting. I figured it would take months and months for some freeper to wander in and flame me.

  3. Congratulations on the troll!

    Fortunately there’s still Justice Ginsburg. The New York Times had an article yesterday on how she is using oral dissent more frequently:

    My crush on her is starting to get out of control.

  4. […] You really found me!  The past 24 hours have been very good to this blog: not only did I get my first flamer, but my post about marriage got picked up by DC Blogs.  Rise, little hit count, […]

  5. […] still be a gap if women simply get paid less for the same work – and lest we forget, it’s now awfully hard to fight that, thanks to the Supreme Court.  One thing that struck me about both Hemel’s article and the […]

  6. […] probably prompt Congressional action relatively soon.  These two rulings, which I wrote about earlier, ended up being the only two that prompted a probably livid Ruth Bader Ginsburg to take the […]

  7. […] the ability of women and minorities to sue their employer for pay discrimination.  At the end of the post I wrote: The ruling is just another in a long tradition of blaming the victims for their own pay […]

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