Total Drek

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Thursday, May 31, 2007

Repensum est Canicula

Smarter people than me are probably aware that the Supreme Court recently ruled on the case of Lilly Ledbetter v. Goodyear Rubber and Tire Company. In this case Ms. Ledbetter sued Goodyear for wage discrimination, alleging that she was, in effect, being paid less for the same work performed by her male colleagues. Indeed, it appears that in many ways her claim was justified:

Ms. Ledbetter’s salary was initially the same as that of her male colleagues. But over time, as she received smaller raises, a substantial disparity grew. By the time she brought suit in 1998, her salary fell short by as much as 40 percent; she was making $3,727 a month, while the lowest-paid man was making $4,286.

Assuming that her work performance was not such that the smaller raises could be justified- and I tend to think that's a safe assumption since otherwise Goodyear probably would have fired her for cause- we seem to have a sort of cumulative discrimination occurring here. Yet, despite the fairly dramatic nature of the disparity, the court ruled against Ms. Ledbetter. The reasoning is intriguing:

The court held on Tuesday that employees may not bring suit under the principal federal anti-discrimination law unless they have filed a formal complaint with a federal agency within 180 days after their pay was set. The timeline applies, according to the decision, even if the effects of the initial discriminatory act were not immediately apparent to the worker and even if they continue to the present day.


In an opinion by Justice Samuel A. Alito Jr., the majority rejected the view of the federal agency, the Equal Employment Opportunity Commission, that each paycheck that reflects the initial discrimination is itself a discriminatory act that resets the clock on the 180-day period, under a rule known as “paycheck accrual.”

“Current effects alone cannot breathe life into prior, uncharged discrimination,” Justice Alito said in an opinion joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. Justice Thomas once headed the employment commission, the chief enforcer of workers’ rights under the statute at issue in this case, usually referred to simply as Title VII.

So, in essence, if someone begins discriminating against you, but you don't notice it fast enough, their discrimination cannot be penalized. This is an intriguing concept to me in that, at first glance, it seems to resemble the legal functions of the Statute of Limitations. The SoL is a useful legal mechanism that reflects the potential errors that can creep into memory over time. Thus, we limit vulnerability to prosecution after a certain period not because we stop caring that an injustice transpired, but because it becomes unreasonably difficult to ensure a fair trial. This is a useful protection. So, we might regard this supreme court ruling as just a defense of the Statute of Limitations.

Yeah. Except, really, there's an issue. Let's say that I were to beat someone and the statute of limitations for assault is five years. That means that if I were to evade prosecution for five years, I would then be immune. The thing is, during the intervening span, I am not offending against my previous victim or continuing to do additional harm. In Ms. Ledbetter's case, the harm that stems from the act is ongoing. Thus, the Supreme Court decision works out to be quite a bit more restrictive than the Statute of Limitations in that now if you harm someone and get away with it for long enough, it becomes legal for you to continue to harm that person.

This is really a serious miscarriage of justice and one that favors powerful corporate interests over relatively powerless citizens. Then again, we should keep in mind the fascinating possibilities now open to us thanks to this ruling. While corporate interests are busy rejoicing at their newfound ability to screw us and get away with it, we have a newfound advantage as well. If you start stealing cable television, or power, or gas, or water and you can get away with it for long enough, guess what? According to the supreme court, your theft becomes legal.* Not only can't you be prosecuted, you can actually keep stealing. Guess what else, huge corporate interests?

Payback is a bitch.

* Yes, I'm aware that virtually no court would be likely to interpret the precedent in this manner. What I am saying is that, really and truly, the cases are fairly parallel.** If the stealing example is so obviously wrong, why are we even having the goddamn conversation about workplace discrimination? Seriously.

** i.e. when I work for money I am trading my skill and labor for compensation. If I am paid less for equal skill/labor than someone else then my employer is effectively stealing from me in much the same way that I would be stealing if I paid for ten bags of flour but actually left the store with twelve.

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Blogger Soch said...

I stumbled on this just today, but it is interesting.

I agree that this decision seems to be a miscarriage of justice, where the employer is benefitting from a thin legal technicality, but that seems to be the way the Supreme Court works; The revel in cutting things down to the smallest legal technicalities.

I disagree with you, however, that pay disparity is comparable to theft. Certainly, if there's a pattern according to sex, or height, or ethnicity, pay disparity is evidence of immoral (and illegal) discrimination, but if you are breaking it down to a marketplace metaphor, then your metaphor fails.

If I sell a service, and I barter for the best price, then I might get different prices for my service from different customers. If I regularly buy a service from various individuals, then I might negotiate different rates with each. Those who negotiate less-well are not being stolen from.

This is only immoral if there is a pattern that develops where a certain *class* of people are receiving less across the board.

Tuesday, November 11, 2008 3:23:00 PM  
Blogger Drek said...


I understand your point but I think it rests on the idea that people in the market place are free agents able to enter into contracts equally with others. Thing is, this is absolutely not true for a lot of people and there are substantial power imbalances between large corporate employers and individuals. As such, I think the metaphor holds.

But, hey, reasonable people will disagree

Thursday, November 13, 2008 8:38:00 AM  
Blogger Soch said...

I'm not arguing the hard-right purely-free market point. Even Adam Smith recognized that the free market needed SOME controls. That's not my point.

My argument is that it can be discriminatory, and wrong on many levels, but that is not the same as theft. Theft is wrong, chauvinism is wrong, but that does not make the two the same thing.

Thursday, November 13, 2008 9:09:00 AM  

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