"Only the early birds catch justice"

Hoes are straight trippin yet again. Kim Gandy articulates it best. Read on...

First Our Wombs, Now Our Money - the RATS Strike Again
Below the Belt: A Biweekly Column by NOW President Kim Gandy
June 12, 2007

As long as the Supreme Court intends to periodically mangle our rights, I'd like to suggest that public service announcements be issued to let us all in on the secret.

For instance, in light of the recent 5-4 decision in Ledbetter v. Goodyear Tire, all women, and really anyone who might be discriminated against on the basis of their race, color, religion, national origin or disability, should get the following message:

(VOICE OVER VIDEO OF WOMAN RUSHING) "Hurry. Right now. Before it's too late. Take these three little steps:1) Find out the salaries of every co-worker who performs duties similar to yours, then2) Determine whether you are being paid less than your coworkers, and whether the disparity is unrelated to differences in experience or performance (and therefore may have to do with your sex, race, national origin, religion, or disability) and3) If you think you are, then RUN, don't walk to the nearest office of the perpetually backlogged Equal Employment Opportunity Commission (EEOC) and file a charge of discrimination pronto.

(SCROLLING MESSAGE ON SCREEN)Important PostScript: If the company's decision that created the pay disparity (as in, you were hired at a lower salary) happened over 180 days ago, please disregard this message.

Yeah, yeah. We won't hear an announcement like that anytime soon. You're likely to hear more (and more often) about the whereabouts of Paris Hilton than about what the Supreme Court has done to our rights. Well, not the whole Supreme Court, really just the new-majority RATS (i.e. Roberts-Alito-Thomas-Scalia), led to 5-4 victory by the King RAT, Anthony Kennedy.

Question is, though, even if everybody was tuned in to the Ledbetter decision and its consequences, do you think it's realistic to assume that already-underpaid people have the time, resources, and gumption to complete the steps listed above in such a short time frame. Wouldn't most of us want to check and doublecheck before filing a legal complaint against our employer? And that's not likely to happen in a mere 180 days.

But then, the RATS know that, or they just don't give a fig one way or the other. They've already proved beyond a doubt their affinity for inhumane, unworkable rulings, having decided Gonzalez v. Carhart just two months ago. Both decisions are wholesale assaults on women, justice, and reason.

These are the facts of Lilly Ledbetter's case: After working for Goodyear for almost twenty years, Ledbetter filed a charge of sex discrimination with the EEOC. She was involuntarily transferred from her job as production supervisor to a position on the production floor, at which time she took early retirement. As production supervisor, Ledbetter, the only woman with that title at Goodyear in Alabama, was the lowest-paid employee in her position by a long shot. She was paid $3,727 a month, while the lowest paid male production supervisor was paid $4,286, and the highest $5,236. When her case went to trial, a federal district court jury concluded she had suffered illegal pay discrimination on the basis of sex, awarding her $3 million. The judge cut that amount down to $300,000 because of Title VII's damage cap (that's another whole kettle of smelly fish).Goodyear appealed the decision, countering that Ledbetter's claim was made too late. Sure, Goodyear may have discriminated against her, but they'd been paying her less for a LONG time -- much more than the 180 day allowance for filing claims of discrimination with the EEOC. Never mind that every paycheck she received was discriminatory because it paid her less than similarly situated men. Only the early birds catch justice.

And wouldn't you know, the RATS gave Goodyear a virtual high-five. Lilly Ledbetter, despite having proved to a jury that her employer had made multiple discriminatory decisions that affected her pay right up until her retirement, is left without a penny. Even the $300,000 that the federal district court awarded her vanished when the Supreme Court overturned even that pittance of compensation for years of discrimination. Rats & Co. merged, so to speak, with Goodyear on the idea that pay discrimination should be treated like discriminatory firings or denials of tenure -- where the employee has 180 days from the date of the firing/denial of tenure.

Therefore, each paycheck Ledbetter received after her employers decided to discriminate against her by paying her less was not, according to the Court, another independent act of discrimination, as had long been the Court's interpretation, but merely an "effect" of prior discrimination with "no present legal consequences."

Yes, hard as it is to believe, those lovers-of-precedent John Roberts and Sam Alito tossed aside another longstanding Title VII precedent, this time in Bazemore v. Friday (a unanimous decision) that held "each week's paycheck that delivers less to a black to a similarly situated white is a wrong actionable under Title VII." The RATS motto: Precedent is highly overrated.So, one moral of this Court's ridiculous story is that we'd all better start fine-tuning our mind-reading skills. That way, we'll know the moment when our bosses decide to pay us less than the guy in the next cubicle, and off to the EEOC we'll merrily go.

On the other hand, as lawyers Joanna Grossman and Deborah Brake explain in their commentary on the Ledbetter decision, we still risk being caught between a Rat, er, a rock and a hard place: "If the plaintiff waits too long, she loses her ability to challenge continuing discrimination in pay, even as the gap increases through neutral percentage-based raises. Yet if she complains to her employer at the first sign of a pay gap, she risks lacking an adequate foundation for a 'reasonable belief' that the gap is attributable to gender discrimination -- leaving her vulnerable and unprotected from retaliation in response to her complaint."

Once again, this Folie-a-Cinq (loosely translated: madness shared by five) Court has interpreted the law of the land with no mind to either justice under the law or reality on the ground. And the fact that only four members of the Supreme Court see any value in maintaining robust protections from job discrimination is one more frightening cue that things must change in 2008. Until I see you at the polls, I urge you to join me in supporting the legislation being introduced this very day to remedy at least some of the damage done in the Ledbetter decision. In her eloquent dissent, Justice Ruth Bader Ginsberg concluded that "the ball is in Congress' court..... to correct this Court's parsimonious reading of Title VII."

So let's take action now to ensure there is momentum behind that ball. If you're not already signed up for NOW's Action Alerts, sign up now so that you can get our alert on how you can support this important bill. Or start now, practicing those public service announcements.