The distinction came to mind last week when the Supreme Court split 5-4 in the case of Lilly M. Ledbetter. Equity was on her side — the Goodyear Tire & Rubber Co. had treated her badly — but the law was on the side of Goodyear. And because the high court is little concerned with what is "fair," or "equitable," or even with what is "just," she lost and Goodyear won.
The facts were not in dispute. In 1979 Ledbetter went to work for Goodyear as a salaried employee in the company's plant in Gadsden, Ala. She took early retirement in 1998. Subsequently she discovered that almost from the beginning of her employment as an area manager, she had been paid significantly less than 15 male employees with identical responsibilities. Toward the end of her employment, Goodyear was paying her at the rate of $44,724 a year. Her male counterparts were pocketing $51,432.
When Ledbetter belatedly learned of the discrepancy, she complained to the Equal Employment Opportunity Commission. Under what is known as Title VII, it is unlawful for any covered employer "to discriminate against any individual with respect to her compensation because of such individual's sex."
But — there is always a "but" — the law says that claims under Title VII must be filed "within 180 days after the alleged unlawful practice occurred." Manifestly, Ledbetter's claim was time-barred. Under the law, she was out of court before she ever got in.
The series began 30 years ago this week, when the high court ruled against flight attendant Carolyn Evans in her suit against United Air Lines on charges of sexual discrimination: Hired in 1966, she was fired in 1968. How come? In those antediluvian days, when female flight attendants were still called stewardesses, the airline had an ironclad policy: If you marry, you're out. Accordingly, United fired stewardess Evans. At the time, she made no timely challenge.
In 1972, under a new union contract, the airline hired her again, but treated her as a new employee for purposes of seniority. She complained that the company was "perpetuating the consequences of forbidden discrimination." Speaking, surprisingly, for a 7-2 court, Justice John Paul Stevens was sympathetic but unmoved. The law was clear:
"United was entitled to treat Evans' termination as lawful after she failed to file a charge of discrimination within the 90 days then allowed by the law. A discriminatory act which is not made the basis for a timely charge is merely an unfortunate event which has no present legal consequences."
Nevertheless, dissenting Justice Ruth Bader Ginsburg spoke to the point at quite considerable length. (This time, Stevens was on her side.) Her colleagues, she said, had overlooked a common characteristic of pay discrimination:
"Pay disparities often occur, as they did in Ledbetter's case, in small increments; cause to suspect that discrimination is at work develops only over time. Comparative pay information, moreover, is often hidden from the employee's view. Employers may keep under wraps the pay differentials maintained among supervisors, no less the reasons for those differentials. Small initial discrepancies may not be seen as meet for a federal case, particularly when the employee, trying to succeed in a nontraditional environment, is averse to making waves."
In Ginsburg's view, Ledbetter had abundantly demonstrated that her pay was unfairly low because of "a long series of decisions reflecting Goodyear's pervasive discrimination against women managers in general and Ledbetter in particular." It is time, she said, for Congress to correct the court's "parsimonious" opinion.
After last week's opinion came down, Sen. Hillary Rodham Clinton, D-N.Y., announced she would seek to amend the Civil Rights Act to prevent a recurrence of the perceived injustice in Ledbetter's case. Go, Hillary, go!
(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)
