TOO LATE FOR JUSTICE

For years Lilly Ledbetter was paid less than her male co-workers at a Goodyear tire plant where she worked. She brought charges of sex discrimination. A jury awarded her more than $3 million in back pay and damages. The judge cut the award to $360,000. A federal appeals court erased the verdict. And now the United States Supreme Court, in a 5-4 split decision, has ruled against her.

Justice Samuel E. Alito Jr. wrote for the majority that her complaint, filed when she learned of the discrimination in 1998, was filed too late for her to qualify for relief under Title VII of the Civil Rights Act of 1964. The law makes it unlawful “to discriminate against any individual with respect to [her] compensation … because of such individual’s … sex.”

Evidence of sex discrimination in the case went unquestioned. Ms. Ledbetter worked 19 years at the Goodyear plant in Gadsden, Ala. Her pay began equally, but she learned late in her career that it gradually became as much as 40 percent less than the pay of men who did the same work and had equal or less seniority. By 1997, her monthly pay was $3,727 compared to $4,286 to $5,236 for 15 male co-workers. Goodyear cited her “poor performance,” but she received the company’s “Top Performance Award” in 1996.

Justice Alito disregarded all that detail. Instead, he relied on a narrow interpretation of a Title VII requirement that bias charges must be brought within 180 days after the alleged unlawful employment practice occurred. He held that the time limit applied even though she learned only afterward about the discrimination and its cumulative effect.

Justice Ruth Bader Ginsburg read her dissenting opinion from the bench. She said the majority opinion “overlooks common characteristics of pay discrimination.” Goodyear, like most companies, kept payrolls confidential. Employees rarely if ever discussed their salaries. Justice Ginsburg contended that a woman “trying to succeed in an untraditional environment” could be expected to avoid “making waves” over small pay disparities even if she knew about them. But she said that a small differential “will expand exponentially over an employee’s working life if raises are set as a percentage of prior pay.”

Justice Ginsburg, joined in the minority by Justices John Paul Stevens, David H. Souter and Stephen G. Breyer, wound up her dissent by recalling that Congress had acted in 1991 to rectify an earlier “cramped interpretation of Title VII.” She said: “Once again, the ball is in Congress’ court. As in 1991, the Legislature may act to correct this Court’s parsimonious reading of Title VII.”

Members of Congress, especially senators who voted to confirm Mr. Bush’s nominations of Justice Alito and Chief Justice Roberts, will do well to study the Ginsburg dissent and act accordingly.