Comment on Supreme Court Ruling on Pay Discrimination

Checklist for women in a new job: Get clear job description, including pay and benefit package. Learn name of supervisor. Identify closest bathroom. File pay discrimination complaint with the Equal Employment Opportunity Commission.

Or so a narrow majority of the Supreme Court would have it. In a 5-4 decision, the justices ruled that women who suspect they’re being paid less because of gender have only 180 days to file a complaint from the time the employer first sets the lower pay rate – even if they’re unaware of the problem until much later. In fact, that pay inequity may balloon with each percentage increase. But unless management explicitly says, “Make sure this woman keeps earning less than her male peers,” the growing gap won’t constitute discrimination in the eyes of this court.

Suppose, like most women, you have no idea what others are making. Suppose you’re told, as many are, that discussing salary is a major taboo. You’ve just started your probationary period. You may well be afraid that asking about pay will mark you as a troublemaker. Sorry - if the Supremes have their way, you’re fresh out of luck.

Don’t forget that this ruling applies if the discrimination is based on race, national origin or religion as well as gender. Gotta hand it to those justices – they’re equal opportunity oppressors.

Just like that, the Court wiped out 20 years of precedent about how to view the ongoing consequences of discriminatory action. Over that time period, federal courts and the EEOC have consistently ruled that an act of discrimination occurs each time someone in a protected category receives a lower paycheck than co-workers with similar skills and experience.

That’s what Lilly Ledbetter, the plaintiff in this case, believes happened to her. As a manager at Goodyear Tire and Rubber Company, Ledbetter started out earning the same as her 16 male colleagues. But for the 19 years of her employment, she kept receiving lower raises than they did – for several years because she refused the advances of a supervisor who told her, “If you meet me at the Ramada Inn, you can be No. 1, and if you don’t, you’re on the bottom.”

By the time the case went to court, the gap was as much as 40 percent. Like most employers, Goodyear didn’t post salaries. Ledbetter didn’t learn about the disparity for a long time. And when she did, she tried to work it out with upper management so she’d be seen as a “team player.”

Justice Samuel Alito’s decision had a lot of legalese in it. But it might as well have said, “Naah-nah-na-naah-nah.” If you didn’t charge discrimination earlier and you don’t have a smoking gun that shows management plotted to lower your pay some time in the last six months, you have no recourse.

Many of us grew up learning that ignorance of the law is no excuse for wrongdoing. Justices Alito and his brethren have turned that on its head: ignorance of wrongdoing will excuse violations of the law.

We know why women earn so much less than men: their employers pay them less. The highest court of the United States of America just made it easier for them to get away with it. Now those we elected to Congress need to follow the urgings of Justice Ruth Bader Ginsberg and fix this mess through legislation.

As for newly hired women, here’s a few more items for that checklist: Find out who the candidates are. Learn their positions on this case. Share the information with everyone you know. Vote.