The Letter of the Law

Alan Rupe (/authors/421-alan-rupe/articles)

June 28, 2007
Well, that didnt take long. From the time Chief Justice William Rehnquist died and John
Stevens took his place up through the nomination process of Justice Samuel Alito, every
one of us associated with employment law speculated on whether the "new" Supreme Court
would be conservative ("employer-oriented") or liberal ("employee-oriented"). The answer to
everyones speculation came pretty quickly from the "new" court. The answer is neither.
The first decision by the "new" court came last year in Burlington Northern & Santa Fe
Railroad Co. v. White. In Burlington, plaintiff Sheila White was hired as a track laborer. The
position required removing and replacing track components, transporting track material,
cutting brush and clearing litter and cargo spillage from the right of way. White had
experience running a forklift and was soon assigned to forklift duty, but was still classified as
a track laborer. Burlington employees considered forklift duty a cleaner, easier job.
When Whites supervisor made sexually discriminatory comments about a females place
in his department, White complained to management, and the supervisor was disciplined.
But almost simultaneously, Whites job was changed from running the forklift to "standard"
track laborer duties because other employees complained that a more senior man should
have the easier, more prestigious job of running the forklift.
White filed a charge of retaliation with the EEOC. A few days later, Burlington suspended
White without pay because she was involved in a disagreement with yet another supervisor.
The company eventually concluded White was not insubordinate and reinstated her to her
job, with back pay. White filed a second charge of retaliation with the EEOC, claiming the
suspension (even though she received back pay) was an adverse employment action.
Previous court rulings held that an adverse employment action was not a mere
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inconvenience or alteration of job responsibilities, but required an adverse effect on the
employees job status. This included actions such as hiring, firing, failing to promote, job
reassignment with significantly different responsibilities or a change in benefits.
Burlington worked its way through the appeals process, and in June 2006, the court
changed the rules of the game. The Supreme Court held that the word "discrimination" (in
the context of Title VIIs anti-retaliation provision) is not confined to employment actions, but
that the new standard for determining if a particular action constitutes retaliation is whether
the action "is harmful to the point that [it] could well dissuade a reasonable worker from
making or supporting a charge of discrimination."
The court explained the new standard distinguishes between "the ordinary tribulations of
the workplace, such as the sporadic use of abusive language, gender-related jokes, and
occasional teasing" and actions that would actually keep an employee from pursuing legal
remedies for an employers illegal actions. The court recognized that an "an act that would
be immaterial in some situations is material in others." The decision was heralded as the
most employee-friendly U.S. Supreme Court decision in many years and everyone
speculated that the court would favor employees in later decisions.
On May 29, the Supreme Court issued its ruling in what critics are calling the most
favorable U.S. Supreme Court decision for employers in a long, long time. In Ledbetter v.
Goodyear Tire & Rubber Co., plaintiff Lilly M. Ledbetter, a Goodyear employee for 19 years,
claimed that past supervisors had given her poor performance evaluations because of her
gender, resulting in an increasing disparity in pay over the years between her and her male
counterparts with the same job. Ledbetter won at trial; Goodyear appealed, claiming that
Ledbetters charge of discrimination was not filed in a timely fashion.
The 1964 Civil Rights Act makes it an "unlawful employment practice" to discriminate
"against any individual with respect to his compensation ... because of such individuals ...
sex." The term "employment practice" has generally been interpreted to be a "discrete act or
single occurrence that takes place at a particular time." And an earlier Supreme Court
ruling that the deadline for filing a charge of discrimination with the EEOC is triggered at the
time a discrete, unlawful practice takes place made it seem that Ledbetter was
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discriminated against each time she received a paycheck lower than her male counterparts.
Ledbetter made that argument and a jury agreed, awarding her $360,000, plus attorney fees
and costs.
The Supreme Court ruled that the decision setting pay is a "discrete" act that begins the
period for filing an EEOC charge, and the later (even if discriminatory) effects of that act do
not restart the filing period. To be timely, Ledbetter would have had to file an EEOC charge
within 180 days (or 300 days) of each poor evaluation (allegedly made because of her
gender).
Because "discriminatory intent" is an element central to a claim of disparate treatment
and Ledbetter failed to allege discriminatory intent for each paycheck issued, payments
made to Ledbetter were not new "discrete" acts triggering a new filing period. The court
relied on the plain language of the statute in reaching its decision, concluding, "[u]ltimately,
experience teaches that strict adherence to the procedural requirements specified by the
Legislature is the best guarantee of evenhanded administration of the law."
Two seemingly polar opposite decisions. But look closely at these two rulings and the
"new" courts direction becomes apparent: Read the statute and strictly apply it. No nuances
here. "Strict constructionism" is the courts point north. And when a law is strictly construed,
it is hard to be either liberal or conservative.
In Burlington, the court wrote: "The question is whether Congress intended its different
words to make a legal difference. We normally presume that, where words differ as they
differ here, Congress acts intentionally and purposely in the disparate inclusion or
exclusion. ... [P]urpose reinforces what language already indicates ... ."And in Ledbetter,
the court relied on the plain language of the statute in reaching its decision, concluding: "[U]
ltimately, experience teaches that strict adherence to the procedural requirements specified
by the Legislature is the best guarantee of evenhanded administration of the law."
The courts baseline of "strict constructionism" is absolutely straight between Burlington
and Ledbetter. Employers must read and reread the statute and then strictly apply those
statutory principles in the workplace. If not, the Supreme Court will be happy to do it for
them.
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