May 30, 2007

Just another reason that votes matter

The two Bush additions to the Supreme Court proved the the difference in
"yesterday's Supreme Court ruling in Ledbetter v. Goodyear. The court ruled that employees must make their discrimination complaints within 180 days “after the alleged unlawful employment practice occurred.” In other words, the discrimination occurs at the time a woman is given a salary that is significantly lower than her male counterparts. If she doesn't catch on to the pay disparity within 180 days, she's screwed. Which is why Ledbetter's attorneys had argued that she was discriminated against every time she was handed a paycheck for less money than her male equivalent on the job -- not simply when her salary was determined. "

Isn't that wonderful. Because she didn't find out what her coworkers were paid immediately (do you know if you are over-paid--under-paid?) she is out of luck. The Republican world is amazing isn't it. The Court overturned a jury trial that ruled for this woman. So much for the will of the people, right?

I am constantly amazed at how many conservatives celebrate democracy (after all, we are fighting a war to spread it) yet work consistently to undermine democratic institutions. Our judicial process is now a political machine, our courts work to undermine the rights of individuals, and Republicans are hard at work trying to disenfranchise people. Glad we are fighting for democracy.


steve s said...

After reading the case, I'd have to say I agree with the decision. It makes sense that the 180 days will toll once the person knows what their salary is, as opposed to when they get paid. If you want to blame someone for this narrow time frame, blame the congress that passed Title VII of the Civil Rights Act. If Congress thinks it should be from when the person gets paid, they could easily change the law to reflect this.

The court overturned the jury trial for a mistake in law, not a mistake in fact.

Streak said...

I still disagree and suspect that they read the law in a way to most benefit business--as has been the conservative value over the last 20 years. Screw the worker and especially women and minorities.

BTW, obviously some on the court disagreed with you and Alito:


The Court’s insistence on immediate contest overlooks common characteristics 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.

Pay disparities are thus significantly different from adverse actions “such as termination, failure to promote, … or refusal to hire,” all involving fully communicated discrete acts, “easy to identify” as discriminatory. See National Railroad Passenger Corporation v. Morgan, 536 U. S. 101, 114 (2002) . It is only when the disparity becomes apparent and sizable, e.g., through future raises calculated as a percentage of current salaries, that an employee in Ledbetter’s situation is likely to comprehend her plight and, therefore, to complain. Her initial readiness to give her employer the benefit of the doubt should not preclude her from later challenging the then current and continuing payment of a wage depressed on account of her sex.

ubub said...

I am a public employee, so my salary is a matter of public record. For those in the private sector, without them telling you directly, or a without a breach in confidentiality, how does one learn what a co-worker's salary is?

Steve, did the majority find that the had constructive notice (that she should have known about the pay disparity)?

I find strict construction frustrating because it seems so often to lose sight of the issues the law was passed to address to begin with. Case in point.

JoeG said...

I've been at my job for three years, and I have no idea what my coworkers make. It is a private matter not open for discussion. In terms of that, the 180 day limit is completely unreasonable. I 100% agree with Justice Ginsberg's dissent in this case. But now that the decision has been made, Congress needs to act to fix this injustice. I have heard that Hilary Clinton is already writing a bill for this. Let's hope it gets through.

steve s said...

Since it was a 5-4 decision, there are probably many that disagree with me. I only skimmed the opinion, but it appears that the overwhelming majority of prior cases agreed with the majority. I would tend to agree that it is a bad law, but it is up to Congress to fix it, not a small group of unelected judges. There are thousands of crappy laws on the books and the courts should only overturn them if they are unconstitutional.

I am glad that someone is trying to change this law.

ubub said...

Oh yeah, "unelected judges." I love that phrase, because it has such a deep resonance with the populists among us. There is a connotation of illegitimacy.

Here in WI we elect our state Supreme Court justices. Would you believe that the winner in the last election won despite pretty damning allegations of conflict of interest? She recently agreed to pay a $5,000 fine and $12,000 in costs related to the ethics investigation.

I am not saying that appointments lead to better judges, only that elected judges are not necessarily the solution.

steve s said...

It was not my intent to stir up a populist revolt. I am not a huge fan of the phrase "unelected judges," but in this narrow instance, it applies. In terms of molding public policy, the judiciary branch should be the most restrained and cautious. Presumably, if the legislative and executive branch are not responsive to the public, they can be voted out (or for something very serious, impeached).

The same is not true for the federal Supreme Court. They serve until they resign or are impeached. IIRC, only one has been impeached, but he was never convicted. I think this is a good system, as it insulates the court from opinion polls and special interst (to some degree). It does make them a poor mechanism of determining what the people want, but the other branches are supposed to be doing that. Therefore, most public policy should not be from the judcicary, IMO. Granted, there are instances where I believe the court did the right thing, but I generally believe they should be cautious or conservative.

We elect judges in Michigan, all the way up to the State Supreme Court. I think it is not a good system, as most people don't care and whomever spends the most money usually wins. The ads are very deceptive and factually lacking. If it were up to me, district and circuit judges would be elected and supreme and appellate judges would be appointed for fixed terms.

Streak said...

It isn't a bad issue to discuss--this role of the judiciary. What bothers me about your take on the judiciary is that the cautiousness of the court gave us the reinterpretation of the 14th Amendment to narrow and remove protection intended for the freedmen. I understand that the judges are not supposed to make policy, but what they have done so often, and I believe in this case, is not to act cautiously, but simply acted in the best interest of the status quo. In other words, when the judges act almost reflexively against the people, they make the court mostly an instrument for the already powerful.

steve s said...

I'll admit that I have struggled with the role of the court and have ended up taking inconsistent positions over the years. I like the consistency and predictablity of the strict constructuralists. I also think there is some degree of unfairness when the court starts interpreting the Constitution in radical ways or 'manufacturing' rights in areas where the Constitution is silent. On the other hand, there have been times where the court went against precedent or 'manufactured' a right and it was clearly beneficial to society. The two issues that come to mind are desegregation and privacy as it relates to brith control laws.

There are several instances where the court was wrong, IMO, when they went against what the Constitution says or 'manufactured' a right and it was harmful. One area is Roe v. Wade. Setting aside the morality of abortion, the court used the "penumbra" of the bill of rights to say there was a right to privacy. They effectively moved the debate over abortion out of the realm of the public and ended any liklihood of some kind of workable compromise. I believe this is why we have such extreme positions now. If the decision went the other way, I think there would be some kind compromise today. The other area is the 4th amendment. Besides the Patriot act, there are so many ways to get around the requirement of a warrant, that it is extremely difficult to get a bad search tossed out.

As for upholding the status quo, it would depend on the circumstances. What does the law say? What does the Constitution say? What is fair? What is the best mechanism for change? Ginsburg makes a good point in her dissent. The law, as interpreted by the court, is very weak. A time limit, or statute of limitation, is supposed to protect the defendent. Congress made a weak law, but courts have said over an over that they are not supposed to rehabilitate bad laws.

I realize that I may seem wishy washy, but I am just not comfortable with always taking one side in interpreting the role of the court. Ultimately, I think we benefit from a well rounded court.

Can you elaborate on the 14th amendment? In studying the ratification, it seems that it has been expanded beyond what it was orginally supposed to do (such as protecting gender and in the area of due process).