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An Invitation to Justice for New Congress

Until two weeks ago, I thought my 26 years in the House of Representatives had inured me to those disappointing occasions on which the Supreme Court restricts legislative acts of Congress whose intent is clear, means are constitutional and ends are just.

I have had firsthand experience at being frustrated by the court. As the principal House sponsor of the landmark Americans with Disabilities Act, I have been deeply troubled by recent court decisions that narrowly construe the ADA’s protections because I know Congress intended the law to be given broad application.

Yet even a Congressional veteran like me was taken aback by the court’s recent 5-4 decision involving Lilly Ledbetter, a supervisor at the Goodyear Tire and Rubber Co., who sued her former employer for paying her less than all of her male counterparts.

Ledbetter’s complaint was based on Title VII of the 1964 Civil Rights Act, one of our nation’s most important civil rights statutes, which prohibits employment discrimination based on race, color, religion, sex and national origin.

The merits of Ledbetter’s complaint were never in doubt. A federal jury found that Goodyear violated her rights under Title VII, which requires employees to first file complaints with the Equal Employment Opportunity Commission within 180 days of the alleged discriminatory practice.

Notwithstanding the jury’s finding, the court dismissed Ledbetter’s complaint. Simply stated, the court held that Ledbetter’s claim was not timely because the later effects of past discrimination (specifically, the paychecks Ledbetter received after Goodyear’s decision to pay her less than her male co-workers) do not restart the clock for filing an EEOC charge.

Although each subsequent paycheck collected by Ledbetter reflected a discriminatory decision about her compensation made years before by Goodyear, the majority ruled that the window for filing a complaint was within 180 days of the first discriminatory decision about her pay.

No matter that each subsequent paycheck Ms. Ledbetter collected perpetuated Goodyear’s initial discriminatory action or even, as Justice Ruth Bader Ginsburg pointed out in her dissent, that the realities of the workplace militate against detecting pay discrimination when it first occurs can take years to uncover, usually by accident.

Ask yourself: When was the last time you and your co-workers stood around the office water cooler and openly discussed your salaries, raises and bonuses? This is not a common occurrence. In fact, in this case, the evidence showed that Goodyear tried to keep salary information confidential.

The logic of the court’s holding is worrisome.

Suppose a complaint fitting the same timeline as Ledbetter’s but alleging employment discrimination based on race or color rather than gender had been filed. Would the Ledbetter majority have dismissed the complaint because it was not filed within 180 days of when the discrimination first took place?

In other words, if it could be proved outside the initial 180-day window in which her employer set her compensation that an African-American employee was paid less than her white peers on the basis of her color rather than her gender, would the court still have held that the Civil Rights Act was, in effect, a useless tool for remedying injustice?

If the answer is “no,” then arguably the court does not consider gender discrimination a social and economic ill on par with other forms of discrimination addressed in Title VII. If the answer is “yes,” then today’s court trivializes discrimination in all its incarnations that, since Brown v. Board of Education, the federal government has dedicated itself to combating. Either way, the Supreme Court of 2007 looks more like Plessy v. Ferguson (which established the separate-but-equal doctrine) than Brown.

As Ginsburg pointed out in her dissent, the majority conveniently ignored precedents supporting Ms. Ledbetter’s case, including decisions by at least eight of the federal circuit courts of appeals.

But Justice Ginsburg is too kind. The majority chose a dangerous reading of the Civil Rights Act that is inconsistent with Congressional intent. In fact, the court itself has even recognized in prior cases that Congress intended Title VII to have a broad remedial purpose: to make persons whole for injuries suffered on account of unlawful employment discrimination.

At the end of her dissent, Justice Ginsburg invites Congress “to correct the Court’s parsimonious reading of Title VII.” Given the cramped reasoning of the majority in Ledbetter, I believe that is exactly what the new majorities in Congress will — and must — do.

Rep. Steny Hoyer (D) is the House Majority Leader. He represents Maryland’s 5th district.