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Real-world redress

Proving job discrimination is tough, thanks to the Supreme Court. Lawmakers aim to change that.

April 23, 2008

It's hard to choose a least favorite decision by the U.S. Supreme Court last term. There are, sadly, many candidates. But one strong one would be the court's mystifying work in Ledbetter vs. Goodyear Tire & Rubber Co. That ruling, decided on a 5-4 vote, held that victims of gender discrimination may not collect damages from employers unless they report the discrimination within 180 days of its occurrence.

As a narrow reading of the law, that's all well and good. But as a prescription for redressing harm -- the intent, after all, of anti-discrimination law -- the court's approach is impossibly binding. Most cases of discrimination, including the one before the court in Ledbetter, are difficult to discern at once, for the simple reason that most discrimination is covert. In the case of Lilly Ledbetter, a jury found that her employers had unfairly paid her less than male colleagues over a period of years. When Ledbetter discovered the disparity, she sued, but it was years after the initial discrimination, so five justices of the Supreme Court stood on a sterile legal principle in order to deny justice.

We are thus heartened by legislation :h2831pcs.txt.pdf that has passed the House and is championed in the Senate by Sen. Edward M. Kennedy (D-Mass.) to correct the court's misreading of the law. The bill, HR 2831, faces a vote as early as today. If adopted, it would make clear that each time an employee receives a paycheck that reflects an employer's discrimination, it constitutes a fresh act of lawbreaking and resets the clock on the 180 days. Justice Ruth Bader Ginsburg had argued that position in dissent when the case was before the court; she failed to persuade a majority of her colleagues, but this bill will do by statute what Ginsburg attempted to do by order.

"By enacting this law," Kennedy said in support of it, "we will restore a rule that reflects how pay discrimination actually occurs in the workplace. And it will give all workers a fair means to stop ongoing discrimination and obtain fair compensation for the discrimination they have endured." Congress should pass this bill, and President Bush should sign it.

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