Sam wouldn’t know how it feels. Neither would John, Nino, or Tony. Clarence should know from related experiences — but Clarence seems to be in denial about a lot of issues.
I know how it feels. “It” is sex discrimination at work. It was a long time ago, and I didn’t do anything about it — but like many women I’ve encountered over the years, at some point we all know what sex discrimination in the workplace feels like. It’s awful, and demoralizing, and downright scary — especially for younger workers who may not want to rock the boat for fear of jeopardizing their jobs or careers.
Five men are now the definitive majority on the Supreme Court — Chief Justice John Roberts, Associate Justices Samuel Alito, Antonin Scalia, Anthony Kennedy and Clarence Thomas (who once was head of the Equal Employment Opportunity Commission). They have just issued a ruling affecting the rights of the millions of female workers who are the backbone of so much of this nation’s economy — the 46% of the national workforce that still earns only 76% of what men earn on average.
Writing for the all-male majority in Ledbetter v. Goodyear, Justice Samuel Alito (who replaced Justice Sandra Day O’Connor last year) declared a strict constructionist interpretation of the 180-day timetable for filing a sex discrimination claim on the grounds of unfair pay under Title VII, the federal law that has protected women’s rights at work for decades. Justice Alito’s opinion says that a woman must file her discrimination claim no more than 180 days from the original discriminatory act, e.g., when the boss first decides to pay her less than male co-workers. Prior to this ruling, many other courts and the Equal Employment Opportunity Commission had ruled that pay discrimination claims could arise with each paycheck, not just with the original salary decision.
Justice Ruth Bader Ginsburg, the sole woman on the Supreme Court, took the unusual step of reading her dissenting opinion from the bench. Justice Ginsburg spoke on behalf of real life for women at work, pointing out that in many cases, women do not even know about pay discrimination until long after the original decision. To force women to know, and then to act publicly by filing a lawsuit, within 180 days of the first instance of a discriminatory pay decision severely limits their opportunities to discover, confront and correct the problem through internal negotiations first, which would normally be the appropriate course of action.
In that long time ago, when I had my private bout with sex discrimination at work (this was many years ago with another employer), I spent months agonizing over what to do about it. Friends urged me to file a grievance, to sue, to make a statement. I’ve never hesitated to make statements when it came to the rights of others. But when it was my turn, I felt paralyzed, afraid that making too much of the situation would make it worse.
The good news is that the situation did work out — but a year or two later, certainly not within 180 days of the first discriminatory act. I eventually got the job I should have had from the start — the one the man was given first at a much higher salary. I still didn’t get equal pay, but having the job was a more important victory for me.
But had the Alito opinion been the prevailing law back then, perhaps I would have felt forced to bring the lawsuit within 180 days. I might have even won my case, but I suspect the course of my professional life would have been very different. The Alito opinion can do great harm by forcing women to sue prematurely, before they have fully explored other options. The Alito opinion can also do grave injustice by forcing women to act prematurely or forever foreclose their right to recover wages lost through discriminatory pay schemes.
When Justice Alito replaced Justice O’Connor last year, warning bells began to sound on the potential for retreat from the hard-won civil rights of the prior generation. The bells are ringing even louder this morning.