Wait, they actually decided that there is a statute of limitation of 180 days, starting the day that the discrimination starts taking place? That's absolutely ridiculous, and makes no sense at all.
I mean...the Supreme Court is now as intuitively partisan and contemptuous of the average person's preferences as Tom DeLay, at least on the important issues.
Let's all take a moment to remember Alth/ouse's encomium to that radical feminist Alito. Jesus Christ.
Is there anywhere on earth where the government sees it as its job to decrease, rather than increase, the leverage of multinational corporations over human beings? Will it be possible to move there in 5 years or so?
A 180-day deadline from the day ongoing discrimination starts makes perfect sense if you assume that the goal is to prevent people from being able to ever achieve redress for illegal discimination. But Jessica Valenti has tits and Sam Alito doesn't.
I should now propose legislation that because employees now have a bright deadline of exactly 180 days in which to notice and report pay discrimination, employers will be required to notify employees in writing on the day that discrimination begins to take place.
I like to take these little moments to remind myself how the Nader people told us that Gore and Bush were two sides of the same coin.
re: 4
Probably, however, those places also tend to be places where the 'beloved leader' wants to replace multinational corporate control over human beings with his own.
This is from Ginsburg's dissent, which notes the friggin' obvious reason the majority decision is bad.
***
The Court's insistence on immediate contest overlooks common characteristics of pay discrimination. Pay disparities often occur, as they did in Ledbetter's case, insmall 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 reasonsfor 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 communicateddiscrete 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 raisescalculated as a percentage of current salaries, that anemployee in Ledbetter's situation is likely to comprehend her plight and, therefore, to complain. Her initial readi-ness to give her employer the benefit of the doubt should not preclude her from later challenging the then currentand continuing payment of a wage depressed on account of her sex.
Although this seems like the kind of thing a Democratic Congress could remedy pretty easily by statute. Wonder if they will.
11: According to the Times article linked in the post, Clinton said she'd introduce a bill to that effect. Don't know how realistic that is, though.
I like to take these little moments to remind myself how the Nader people told us that Gore and Bush were two sides of the same coin.
I've moved past the Nader people. I like to take these little moments to remind myself how the libertarians now tell me the exact same thing.
12: Why not realistic? I would think HRC almost has to introduce the thing. Why wouldn't a Democratic Congress pass it? Would Bush really go so far as to veto such a thing?
Why not realistic?
I honestly don't know, that wasn't an affected understatement. It depends on the particular wording of the bill, I guess. I don't at all doubt that HRC will introduce it, but beyond that, I'm not sure what it's chances will be. There are all sorts of possible roadblocks.
Atrios suggested that a provision correcting this just be slipped into some much larger bill. Hey, it's what being a majority is for.
The epistemology of the majority decision is quite bizarre, for the reason Ginsburg notes. Just draw the discrimination out slowly enough, and an employee won't ever be in both an evidential and legal position to make a case.
16: So does this mean that a majority of the Supreme Court is opposed to anti-discrimination laws in general?
Isn't it more likely that they are for whatever big business and their conservative allies want?
I mean I know they're opposed to laws against discrimination by businesses, but do they think that the very concept of "anti-discrimination laws", even outside the context of employment, is unconstitutional?
This is from Ginsburg's dissent
I can't imagine how lonely she must feel. Forget whether she and Sandra Day O'Connor were best buddies, can you imagine having worked a whole career on equity issues and then having to write dissents like this?
Just a reminder, folks: the 180-day part is in a "statute" enacted by "Congress."
So where Pollak has "they" want this, that, etc., "they" = "Congress."
The majority's reading was perversely literal, IMHO, but not just making shit up like Kennedy did in Carhart II. Look forward to 30 years of perversely literal majority opinions, except of course where it's necessary to tilt a presidential election towards the Republicans.
I think this is all a little unfair. the court has to read the laws the way they're written. they can't just sit there and rewrite the laws because they think it's good policy. I recognize that there's a reasonable argument that the majority made the wrong decision, but I think it's unfair to claim the decision is based on misogyny. They had good reason to interpret the statute as saying that the suit was too late.
People do a lot of complaining about the right side of the blogosphere being a bunch of assholes, but posts like this don't exactly raise the discourse.
In other words, I'm with anderson. It's too bad the decision came out like this, and maybe we don't want such aggressive textualists on the court, but the decision did have some basis in normal legal interpretation.
20: Maybe she takes comfort in the fact that the Republican justices are not motivated by opposition to equality of the sexes, but are instead motivated by extreme deference to laissez-faire economics.
Is there a case coming through the courts soon in which they will have the chance to declare that labor unions are unconstitutional? When is that likely to occur?
I recognize that there's a reasonable argument that the majority made the wrong decision, but I think it's unfair to claim the decision is based on misogyny. They had good reason to interpret the statute as saying that the suit was too late.
Bullshit. Given a multiplicity of available readings of the statutes, the court chose one, and people are trying to sort out why they chose that one. Misogyny is one explanation, chance another, and "tongue up the ass of business interests" yet another. Precisely why one explanation of the majority's choice is better than another is, I think, up for dispute; it's certainly not clear to me that the implied "but Alito's a super nice guy" answers the matter.
these people have for years been saying that they're textualists. they follow the text. had they ignored the text of the law for the sake of hurting women, you might have an argument that they're misogynists. But I don't see how the fact that they followed their stated judicial philosophy is evidence of anything more than consistency.
Since I don't know anything about the legal system I should probably not have so many comments in this thread, but this decision fits a pattern under which the Republican Party, in all situations, defers to the interests of multinational corporations. Since the Supreme Court is not just an arm of the Republican Party, other factors are presumably in play.
Does anyone have the text of the statute?
4: It seems to me that between 90 and 98 percent of the world population lives with a government that either does want to increase the leverage of corporations, or would kinda like to decrease that when they get the chance but first they have to address niggling concerns about the revolutionary army controlling most of the clean water. The remaining two to 10 percent of the world lives in Western Europe, and their immigration policies range from slightly less bad than America's to much worse. Good luck.
28: 42 USC 2000e-5(e)(1):
A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred...
Ian, for ongoing discrimination, saying the suit must be filed within 180 days after it first happens is patently absurd.
A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred...
Thanks, NCP. I take it everyone can see that this doesn't compell the reading offered by the majority. "Unlawful employment practice" can very reasonably be read to include conduct over time, or cumulative effects.
it's not 180 days after it first happened. They were looking at 180 days after the most recent claim that something discriminatory happened. You can't just say, "they passed me up for promotions on 1/1/76, 5/7/84 and 6/2/91, but they hated me the whole time," and then sue and say that since they didn't like you all the way up to 2007, your suit was on time.
I'm sure that the court would admit that a number of possible interpretations could make sense. But their job isn't to choose the one that makes hippies happiest. it's to choose the one that they think most fits the law. Unless somebody can show how they were blatantly inconsistent with past decisions, I think accusing them of misogyny is garbage.
That said, it's not difficult to catch the conservatives on the court in cases of clear inconsistency. Reading some of Scalia's decisions is absolutely horrifying. I just don't think that this is one of those decisions. And just wildly throwing around accusations of misogyny doesn't help anything.
Given the logic that people seem to be using around here, accusations that Yglesias are an anti-semite would be entirely reasonable and in fact laudable.
26: Neighbor, please. The employee in this case had a valid argument that each individual paycheck which she received at a discriminatory pay rate was another "unlawful employment practice," and that the statute of limitations for ongoing discrimination should not be tied to an initial decision made for reasons which were at best uncertain to the employee at the time.
And by the way, if it were such a cut and dried case of statutory intepretation, there wouldn't have been a split in the federal circuits. Which is the reason the Court gave for granting cert in the first place.
They were looking at 180 days after the most recent claim that something discriminatory happened.
The question is what the "something discriminatory" is. If what's at issue is being paid less than male counterparts, it doesn't seem an unreasonable stretch to say that "something" is the last check you received. Maybe that's what the court looked at, but that's not my sense from the commentary.
Ian, Justice Ginsburg addresses this:
On questions of time under Title VII, we have identified as the critical inquiries: "What constitutes an 'unlawful employment practice' and when has that practice 'occurred'?" Id., at 110. Our precedent suggests, and lower courts have overwhelmingly held, that the unlawful practice is the current payment of salaries infected by gender-based (or race-based) discrimination--a practice that occurs whenever a paycheck delivers less to a woman than to a similarly situated man.
I'm not arguing that the case couldn't go either way. But to repeat, when there are numerous possible interpretations the job of the court isn't to pick the one that pleases us.
Okay, from reading the syllabus to the Court's opinion, I can see how they got from point A to point B. What I don't get, and this is for a woeful lack of federal practice, is how these claims don't get saved by a discovery rule or equitable tolling, or such similar legal theories where the defense doesn't get to just hide the ball until the clock runs out.
36: It's not a stretch. In fact, a unanimous panel of the notoriously liberal DC Court of Appeals said precisely that almost exactly 2 years ago.
But their job isn't to choose the one that makes hippies happiest. it's to choose the one that they think most fits the law. Unless somebody can show how they were blatantly inconsistent with past decisions, I think accusing them of misogyny is garbage.
This evades the issue. How are they deciding what "most fits the law"? Maybe they place the relevant texts and arguments in a line on a table, and each member of the majority pressed his penis to the top page of each item. Then they caucused and figured out which series of items was associated with the greatest tumescence and wrote the appropriate opinion based on those data points. Maybe they have a "most fit" meter (though, then I'm not really sure why we need them). Maybe their sense of "most fit" is a function of what interpretation most fits with their (possibly unconscious) misogyny. Or maybe they just got tired, didn't want to miss American Idol, and took the first opinion to hand.
39: I wondered about that myself, when I heard it described on the radio yesterday.
Here's the decision offered in Bazemore v. Friday, directly cited by Ginsburg: "Each week's paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII." What "numerous possible interpretations" does that provide?
The majority says that current inequality in pay isn't a discriminatory practice, it is the effect of a discriminatory practice. The discriminatory practice would be giving an inadequate raise to an employee because that employee is a woman. Each time this occurs you have a separate cause of action that is distinct from the previous discriminatory conduct, and the 180-day period begins to run. While one may disagree with this interpretation, it is definately reasonable and based on sound principles of statutory construction. The obvious solution is for congress to change the language of the statute.
I'm not arguing that the case couldn't go either way. But to repeat, when there are numerous possible interpretations the job of the court isn't to pick the one that pleases us.
Didn't Ian start off saying that the court was just telling us what the law meant. It would seem that where there are numerous possible interpretations, speculations about motive are valid. Misogyny could be it, or a knee-jerk pro-business anti-regulation point of view could be it. Sounds like judicial legislation to me.
44: If I'm skimming the decision accurately, they are not saying that discriminatory pay occurring within 180 days of the EEOC charge is no longer actionable because the discrimination started before that. Just that all that you can sue for damages for all the discrimination that occurred outside the statutory 180-day limit. I don't find that reading at all indefensible.
How they managed to find the claims within the statutory period unsupported is a separate question altogether and one on which the misogyny argument seems to fit more clearly.
44: I think that sounds reasonable, but it's important to remember that Justice Ginsburg is quoting Justice Brennan's concurrence in Bazemore, not the per curiam Opinion of the Court.
Each time this occurs you have a separate cause of action that is distinct from the previous discriminatory conduct, and the 180-day period begins to run.
This is fine as long as we're talking about each decision about a raise, but in practice you could have someone discriminated against once, then brought in line with everyone by getting a 5% raise each year, and after ten years, that person will be making significantly less than her colleagues. It's totally reasonable to say that she's discriminated against every time a decision is made not to bring her salary in line with that of her colleagues, but the majority has ruled that out.
49: Yeah, that's it exactly. It's not enforcing the 180-day rule that's a problem (judicially). It's this reasoning NotATurtle identified that continued inequality isn't present discrimination but simply an effect of past discrimination that is problematic. I think you nailed it -- every time you don't bring a woman up to the pay level of similarly qualified men, it's discrimination anew.
The fact that we as supposedly reasonable people can have an argument over whether the decision was correct seems to imply that an accusation of misogyny is totally unfounded here.
The republican party may very well be generally misogynistic, but it's not because of this decision. Reasonable, non-misogynistic people can come to the same conclusion as the majority, so their decision is not evidence of misogyny. At best, it just fits with what Ogged is clearly going to believe anyway.
Ian, what you're missing is that while the Court's reading of the text of the statute is a reasonable (if context-free and lobotomized) reading of the text, the reading that each smaller paycheck is a discriminatory practice is equally reasonable, and there's precedent for it which they are aware of. Saying "But they're textualists" doesn't absolve them of responsibility for their decision -- relying on the literal text of the statute doesn't give the Court any means of deciding between their reading and the Bazemore reading from Ginsberg's dissent.
That decision, between two equally valid textual readings, can't be made on the basis of textualism. It can be made on the basis of precedent, which they ignored; on the basis of reasoning about Congress's intent (it seems implausible that Congress intended to bar suit in cases where it was highly unlikely that the worker was aware of the initial discriminatory action until past the 180 day mark); or on the basis of service to their other political goals.
The Court can say 'textualism' as loudly as they want, but that doesn't make it a method that allows them to prefer one of two valid readings of the law over another. At that point, they're making decisions on the basis of their policy preferences, and complaining about those preferences is a very reasonable thing to do.
(Thanks for posting this, Becks -- I was thinking I should, and didn't know what I wanted to say.)
49: That seems to be the crucial point, but the Court says that these are discriminatory effects of a practice and thus not actionable. Under the alternate interpretation, the only significance of the 180-day rule, in this context, would be that you have 180-days from your final paycheck to sue for a discriminatory practice, even if that practice occurred 20 years ago. The majority argues that this clearly is not in line with the intent of Congress when it included the 180-day rule in the statute.
I think you nailed it -- every time you don't bring a woman up to the pay level of similarly qualified men, it's discrimination anew.
Only if the motivation for the act of not equalizing salaries is itself discriminatory. There are nondiscriminatory reasons for not doing so.
Ian, I'm not seeing it. Explain to me how dismissing pay inequality as an "effect" of past discriminatory practices rather than a current discriminatory practice makes any sense. Every time an evaluation period rolls around and you look at the pay disparity and think, "Wow, that's so wrong. I think I'll leave it that way," how is that not a current discriminatory practice? That part of the logic strikes me as so strained -- and certainly not compelled by the statute -- that misogyny (even if purely unconscious) seems the best explanation thus far put forth.
LB, I'm not saying that it's not possible that the majority is a bunch of misogynists. What I'm saying is that this decision could be based either on misogyny or on the fact that they simply think their reading is superior for other reasons. I don't agree with your claim that every possible reading is obviously equally valid.
Also, ogged, I apologize. I meant that the decision simply fits *Becks'* priors.
The fact that we as supposedly reasonable people can have an argument over whether the decision was correct seems to imply that an accusation of misogyny is totally unfounded here.
Doesn't that banish charges of any sort of "-ism" about any view publicly held by anyone with a certain level of academic training (or with some other characteristic for "reasonable")?
53 -- Okay, so what non-discriminatory motivation could possibly exist for not equalizing the salaries of equally qualified employees?
56: No. If the majority had blatantly ignored the text for another philosophy, then we could argue that they're misogynists.
57: Pay is not generally equalized across people. They get annual raises, and periodic big raises. But general wage setting isn't set up so as to make every worker get paid the same. I don't see why we would expect a business to make sure everybody is paid the same at all times. Path dependence seems much more obvious.
I mean, businesses aren't collectives. I don't have any clue why we would expect them to equalize everybody's salaries as a matter of policy.
The fact that we as supposedly reasonable people can have an argument over whether the decision was correct seems to imply that an accusation of misogyny is totally unfounded here.
No it doesn't, certainly not "totally". It looks as though the court first found an ambiguity others hadn't seen, and then used the ambiguity to impose their own favored interpretation. Questions of motive strike me as reasonable.
On first reading I thought that Pollak's point wasmerely that the ruling was misogynist in effect, in the sense that it hurt all women and not just the slutty babykillers. But probably the word "misogyny" does imply intent.
Okay, so as reasonable people "we" find that these textualists have multiple interpretations to choose from. They can be textualists who concur with the lower court and the precisely analogous earlier case mentioned by Ginsburg in 44, thus finding in favor of the employee. Or they can be textualists who interpret "unlawful employment practice" as a category that includes the decision to discriminate, but does not include the continuing acts of discrimination, thus finding in favor of the multinational corporation. There's not much suspense over which of those two they'll find in favor of.
48 - Thanks. IANAL, and I missed that that was a concurrence.
I don't agree with your claim that every possible reading is obviously equally valid.
I'm not claiming that every possible reading is obviously equally valid. I'm pointing out that in this specific instance there is an alternative reading for which there is precedent and which based on my professional judgment I consider equally valid. Unless you can point me to the text in the statute that defines 'discriminatory practice' in a way that excludes the ongoing practice of paying lesser wages for a discriminatory reason, there is no textual reason for preferring the Court's reading.
I don't have any clue why we would expect them to equalize everybody's salaries as a matter of policy.
I don't know why they would pay a wide variety of salaries in such a way that every woman made less than every man as a matter of policy either, but they did. That's discrimination, if not necessarily misogyny.
What I'm saying is that this decision could be based either on misogyny or on the fact that they simply think their reading is superior for other reasons.
But who could possibly know! And since they are all honorable men, shouldn't they get the benefit of our doubts?
58: I wasn't really restricting my comment to judicial opinions. In any case, it strikes me that you'd need to be fairly incompetent to "blatantly ignore the text" while crafting an opinion, unless there's some disagreement about what "blatantly ignore" means (as I suspect there is). If all we mean is that following certain formal dance steps protects us from charges of any "-ism," then I think that we're back more or less where I started: there is no publicly held view of a certain class of people (those who know enough to not at least gesture at certain formalities) that can be said to suffer from some sort of "-ism."
Ian, we are dealing with a law which required equalizing pay across populations in certain respects, whether or not you think that such laws should be passed. This is the very law that the court was interpreting, in fact.
We know other things about this court from other sources, and I think that we are justified in not giving them the benefit of the doubt.
Even granting the textualism of the court, does that require this ruling (granting that it allows it)? I'd guess that there is some slack even from the textualist point of view.
I'm senseing a moving target again.
59: Of course we don't expect that everybody is paid the same at all times. We DO however, quite reasonably, expect that people with the same qualifications doing the same jobs in the same company are going to get paid the same, or thereabouts.
we are dealing with a law which required equalizing pay across populations in certain respects. . .
Not.
First of all, the court is not required to follow precedents set by lower courts. That why we call it the supreme court. Second, the law does not require equalizing pay. Third, at the end of the day, it's clear that everybody's interpretation of the events is informed by their prior beliefs about the justices. My point all along has been that this decision obviously may fit into that set of beliefs. However, this decision doesn't give us any new evidence.
as to 63, the reasoning behind this reading is clearly that they don't think that a pay rate remaining below that of others is a discriminatory practice. The argument has been made here repeatedly and 63 ignores it. Pay varies across people. There is simply no requirement to equalize it. Somebody show me the law that says that.
Well, not now because I have to go.
57
Saving the company money.
as to 63, the reasoning behind this reading is clearly that they don't think that a pay rate remaining below that of others is a discriminatory practice
And that's textualism for you.
My point all along has been that this decision obviously may fit into that set of beliefs. However, this decision doesn't give us any new evidence.
That's not right. It gives us one more data point through which we try to trace a curve.
the law does not require equalizing pay
Come on, Ian. She was making something like $700/month less than the lowest paid male in a comparable position, and $1500/month less than the highest paid male in same. You don't have to "equalize" but you do have to be fair.
69
A somewhat naive view (even including the many factor like senority which you omitted).
Ian does seem to be doing the moving goalposts thing. As alluded to by Emerson in 68.
they don't think that a pay rate remaining below that of others is a discriminatory practice.
Note that this isn't a textual argument, it's a statement that within the Justices' minds, without basis in the text of the law, they believe that "Deciding to give someone lower raises because she's a woman is a discriminatory practice; continuing to pay her at the lower rate that was arrived at because she's a woman is not a discriminatory practice." Again, that distinction is not based in the text of the statute; if you want to defend it, you have to defend it for policy reasons.
Well, women do deserve less. After all, they can be swayed by the power of inappropriate touching. ("Science, helping daters date better since 1865.")
64
I don't think there was evidence that as a matter of policy all women were paid less, just that this particular woman was paid less. This was different from a racial discrimination precedent where there was a separate (lower) pay scale for blacks.
man, i wish i could remember a thread in which ian d-b had taken any other stance than playing the contrarian just up to the limit of trolling.
the first couple of times, i was even willing to cut him some slack.
but arguing that this ruling is not a direct expression of the 5-4 majorities settled and ideological misogyny--especially after the spectacle of their recent decision in which they told us that women have to be kept away from the choice of abortion for their own sakes, the poor, mindless emotional dears--well, it just further undercuts his credibility.
If systematically lower pay for women is not discrimination, what would be? Pay is an important factor in employment.
Is the court's argument that, whatever the intent of the law was, Congress wrote the law so badly that it doesn't cover this? That sounds like gotcha nullification law. I cannot imagine an anti-discrimination law which did not cover pay differentials.
Has the court or Ian established or claimed that textualism requires their interpretation, or just allows it? Because if the latter, the aspersions against the court and Ian stand.
81: I don't generally say anything when it's clear that other people are going to make my point or when it's an area I know absolutely nothing about. I also only generally say something when I actually believe it. I believe that the critical mass bikers were in the right. I also think that throwing around accusations of misogyny just lowers the debate. If you think I'm just trolling and keeping arguments from progressing at all, I'm happy to go back to lurking. I'm much more productive that way.
Eh, I'd rather argue than have everyone agree, so I'm happy to have you keep arguing. That said, you're not being terribly persuasive.
72: No, that would explain paying everyone crap across the board. Choosing to pay only women crap for the sake of saving the company money is not a non-discriminatory motivation.
This, particularly:
I also think that throwing around accusations of misogyny just lowers the debate.
Because it's a priori just so improbable that there's no reason to consider it a possibility? I disagree. Because even if it's true the accusation will piss people off so badly that it's counterproductive to make it? I still disagree. Or because in this case there's a good solid reason other than misogyny that explains the Court's decision? Textualism doesn't, and I don't see what does; that doesn't mean it's necessarily misogyny, but the hypothesis hasn't been ruled out.
If I haven't addressed the point you were trying to make, what about accusations of misogyny "lowers the debate"?
76: This would be neither the first nor last time someone has called me naive. Usually they are right. But on this one, WTF? What is "naive" about thinking that people who have the same qualifications and are performing the same job for the same company (and have the same seniority, which I would have considered part of "qualifications," but whatever) should be receiving roughly the same salary? Saying that women aren't victims of discrimination would be naive. Saying that they should be, hardly so.
80 Read the article. She was the only woman in her management level among 16 men. She received lower pay than all of them. Including those less senior, since that's important to you.
The point is that they're textualists, not misogynists, LB. They can only be one ist at a time.
Conservatives seem to change philosophies according to what seems like it will work best. Strict construction, original intent, original text, judicial restraint -- for a conservative they all can do the job. and then in Bush-Gore, they just made shit up, because, hey -- who cares?
However, this decision doesn't give us any new evidence.
Oh hay, I gots something for you to read.
LB and other very reasonable, intelligent people have explained why precisely the two interpretations of the law (paycheck = discrimination vs different raise/bonus = discrimination) are about as equally valid from a textualist point of view as any pair of legal interpretations can be. The court in this case chose to select the one interpretation that not only overturned the established precedent of lower courts, but also overrules the methods of the pertinant government agency that investigates these discrimination claims. Sure, the court is allowed to do it, but I'd say the choice is a little odd and certainly signals some information about the justices.
90:
Yes, it signals a lot of information about the justices, but the real important point is that it doesn't prove that the judges are not textualists, which is the real important point.
Or, wait, why should that be the important point? I fear we have been led astray.
I haven't read much about this--and I certainly haven't looked at the opinion--but is JAC right that it was the EEOC's position that continuing to pay a woman less is ongoing discrimination?
If so, why didn't the Court defer to the agency's interpretation? I'm probably misunderstanding Chevron, because I know nothing about administrative law.
It's a good question, and I'm not sure of the answer.
The Court does not defer to the Agency's interpretation when the Court desires a different policy.
87
Your original comment, 69, used the word "expect" which I thought was expressing a view about what is typical. If instead you were expressing a view about what should be typical my response does not apply.
The reason I ask is that Scalia has often cited Chevron in other contexts, e.g., point source pollution cases where the EPA under Gorsuch held that a particular action was not point source pollution and did not therefore require a permit to pollute.
This makes me think that Scalia is trying to impose his own policy prescriptions, not just following some textualist analysis. I mean, that isn't exactly earth shattering news, but there's not a lot of other reasons that would explain the inconsistency.
This is relevant (note the citation): However, Ledbetter does not assert that the relevant Goodyear decisionmakers acted with actual discriminatory intent either when they issued her checks during the EEOC charging period or when they denied her a raise in 1998. Rather, she argues that the paychecks were unlawful because they would have been larger if she had been evaluated in a nondiscriminatory manner prior to the EEOC charging period. Brief for Petitioner 22.
Also, I believe that the EEOC reversed its position once the case came before the Supreme Court.
Here's what the opinion says on it, in footnote 11:
11 Ledbetter argues that the EEOC's endorsement of her approach in
its Compliance Manual and in administrative adjudications merits
deference. But we have previously declined to extend Chevron deference
to the Compliance Manual, Morgan, supra, at 111, n. 6, and
similarly decline to defer to the EEOC's adjudicatory positions. The
EEOC's views in question are based on its misreading of Bazemore.
I don't know the area of law well enough to say if the claimed practice of refusing deference to the EEOC in this area is real.
85
Consider the following scenario. Company A acquires companies B and C. B employs mostly women in job P and pays them $X. C employs mostly men in similar job P and pays them $1.5X. What are company A's obligations in this situation? Absent the sex disparity in this scenario such pay disparities are likely to persist for a while even after everyone is an employee of A.
99:
and then consider the case in which the CEO of Company A, which just acquired companies B & C, knows the location of a ticking time bomb that is going to blow up the SUPREME COURT!!
REALLY SOON!!!!
Well, I'm just glad that there are people like Alito on the court to take care of situations like that, is all. I can't discuss methods, of course, but i think we can all agree that a wimp like souter just wouldn't have what it takes.
Fair, but not applicable to the facts of this situation.
99: 100 beat me to it. Those kinds of discrepancies in gender and pay are not going to happen without some kind of discrimination in one of the two companies, or some major difference in required work, qualifications, or geographic location. You suck at hypotheticals.
However, despite my lack of lawyerdom, I'd say the current company should probably pay for past discrimination that occurred within the statute of limiations within their company or one of their component companies.
100, 102: I wouldn't call the hypo that bad -- company to company pay discrepancies aren't freakishly unusual even in the absence of discrimination. The ungendered hypo, where legacy differences in payscale persist for a long time after an acquisition, seems like a reasonably possible situation to me. It doesn't illuminate this situation at all, though.
99: From what I've heard from friends in companies B and C, once acquired by A, about half of them become redundant and get laid off. Most of whom should be the high earning men in Company C, if A is trying to maximize profits.
(For those who remain, as roles get sorted out, yeah, company A should eliminate the pay disparity existing between employees with the same qualifications doing the same jobs.)
The thing that seems most tendentious in the majority ruling is their interpretation of the word "practice."
Basically, they are pretending "practice" means a discrete act that changes a situation. But that seems quite at odds with anyone's reasonable understanding. "Practice" commonly refers to an ongoing state of affairs, as long as it is intentioned.
Maybe there's a legal meaning; IANAL. But I searched the text of Title VII and didn't find a definition.
OED:
3(a): The habitual doing or carrying on of something; usual, customary, or constant action or performance; conduct.
(b): A habitual action or pattern of behaviour; an established procedure or system.
Of course they're misogynist. The worst part of it is that their misogyny isn't a primary consideration; it's just the effect of not giving a flying fuck about ovary-Americans.
I think that the statements that, well, Congress can correct this by passing a law kind of gets at what the characteristic feature of the Roberts court is starting to seem to be: they want every specific *application* of the Constitution to be determined by Congress. The fact that this means that things like the idea that women, specifically, have rights, will need to be spelled out piece by piece is just a side effect of a court that thinks that the Constitution's true meaning is that of an empty symbol.
Of course they're misogynist.
Goodyear, or her boss, is misogynist for this policy.
The court is not misogynist for making this decision. This decision is designed to be anti-worker, not anti-woman.
And, AND. The fact that HRC stepped right up and said she intends to introduce legislation over this shit is, right there, one of the reasons that I like her. Okay?
107: Uh huh. And the fact that the workers who usually suffer from discrimination are women and people of color is only a coincidence. Okay with laws against abortion procedures that don't protect women's health? Hey, that's reasonable too.
Tell it to the navy.
Basically, they are pretending "practice" means a discrete act that changes a situation. But that seems quite at odds with anyone's reasonable understanding. "Practice" commonly refers to an ongoing state of affairs, as long as it is intentioned.
God yes. This ruling rests on the kind of anti-feminist arguments made by 18-year old frat boys. AAARRRGGGHHHH.
It drives me crazy that this sort of shoddy reasoning is what passes for the majority opinions of The Highest Court In The Land these days. Kennedy should be ashamed for having been part of this degradation.
Having read the opinion and dissent I think this was a close case which I could argue either way. Regarding whether the decision was misogynist, this seems dubious since the dissent noted:
"... Thus, in truncating the Title VII rule this Court announced in Bazemore, the Court does not disarm female workers from achieving redress for unequal pay, but it does impede racial and other minorities from gaining similar relief.9"