Impact of Ginsburg’s Loss Is Being Missed in the Politics - Geoff Schoos
Monday, September 21, 2020
In this time in our history, in this hypercharged partisan environment, the death of Associate Justice Ruth Bader Ginsburg was for many reasons a crushing blow to the American psyche. Over the coming days and weeks, up until the election on November 3 and possibly thereafter, we will witness political machinations beyond the imagination of most people.
The announcement of Justice Ginsburg’s death was not yet 12 hours old before President Trump signaled that he will quickly appoint a nominee to fill the Court vacancy. And the Senate Majority Leader urged his Republican colleagues to “keep their powder dry,” while promising that the president’s nominee would receive a vote in the Senate. For their part, the Democrats have threatened to dig in to prevent any vote, at least a vote before the election.
In other words, the ugly legislative process we’ve witnessed over the past few years is about to get exponentially uglier.
GET THE LATEST BREAKING NEWS HERE -- SIGN UP FOR GOLOCAL FREE DAILY EBLASTBefore we get immersed in the spectacle of the vile circus that the process of selecting Justice Ginsburg’s replacement process will likely become, we should take a minute to reflect on what we all lost on Friday evening.
As I was thinking about Justice Ginsburg’s tenure on the Court, I drifted into thinking about a recent piece I wrote about promoting diversity in the Rhode Island court system, particularly on the State Supreme Court. As with every public act or statement made these days, mine elicited some favorable comments, some less than favorable (I don’t think I’m “patronizing”), but the only comment I felt I’d really like to respond to was, “Why not appoint judges who’ll follow the law?”
Now that’s a great question. Assuming that there was good faith behind the question, I’d like to take a shot at an answer. In my original article, I wrote about my law school professor’s admonition that law wasn’t really made of steel but rather was made of putty, to be molded and applied to a given set of facts in a specific case. To be honest, at the time we thought his comments were a tad abstract, so I understand why some might find them inaccessible. Let me try to explain by using Justice Ginsburg’s dissenting opinion in Ledbetter v. Goodyear Tire & Rubber Co. (2007).
Lilly Ledbetter was a Goodyear employee for 19 years, who rose into a position of supervisor at one of the Goodyear plants, a position largely occupied by men. Initially, Ledbetter’s salary was in line with her male counterparts, but over time her pay slipped in comparison to the men’s salaries. The year prior to her retirement, Ledbetter’s monthly salary was about $550 less than the lowest-paid male supervisor, and $1500 less than the highest-paid male supervisor.
In 1992, Ledbetter anecdotally learned of the disparity between her salary and her male counterparts, information that was repeated to her over the years until 1997 when her final annual salary was set. In 1998, after finding an anonymous “note” in her mailbox containing the salaries of all the supervisors in the plant, she asked for a raise to address the salary disparity. She was denied. She contacted the Employment Equal Opportunity Commission and filed a complaint in 1998, months prior to her retiring, alleging sex discrimination under Title VII of the 1964 Civil Rights Act. She eventually filed suit in the federal district court.
She won and was awarded damages at the trial level, lost on appeal, and got her case heard before the United States Supreme Court – where she lost. The issue at the Court was not whether she suffered discrimination, but whether she filed a timely complaint with the EEOC. The 5-member majority said no, the 4-member minority said yes.
Title VII provides that a complainant has 180 days (with some exceptions not relevant here) from the date of the discriminatory act to file a complaint with the EEOC. In this case, Ledbetter had 180 days from the September 1997 salary award to file her complaint, which she evidently did by initially contacting the EEOC the following March.
Seems pretty straightforward, right? But there’s a twist. Ledbetter claimed that the discriminatory act did not just occur in September 1997, but accrued over the years with the unequal salary increases. The Court’s majority said that Ledbetter could only argue that a discreet discriminatory act by Goodyear had occurred in September 1997, with all other prior acts lost to history. And because she couldn’t make a case of discrimination of the isolated 1997 salary award, she lost.
The Court’s minority, represented by Justice Ginsberg, argued that the majority’s opinion and analysis ignored how workplaces operate, especially in salary awards. There is no public posting of salaries by most companies, and clearly there is no public discussion by the employer as to why one employee receives a greater salary than another. The only way an employee would know about salary disparities is anecdotal, as in Ledbetter’s case. And anecdotal evidence by itself is insufficient to make a case before the EEOC or in a court.
Prior to 1992, Ledbetter had no idea about the salary discrepancies. Even after 1992 until 1997, she really had no concrete information to bring a claim. It wasn’t until 1998 that she possessed evidence of the cumulative effect of the discrimination against her.
The Court’s majority argued that Ledbetter’s discrimination claim did not assert a “discreet” act occurring in the 1997 salary award but on previous acts of discrimination that occurred each year. Because she did not bring a discrimination claim each year, she was precluded from doing so in 1998.
Justice Ginsberg refuted that argument stating that subtle pay discrimination, because information is kept confidential between the employee and employer, is not easily discoverable as a promotion or termination would be.
Justice Ginsberg pointed to the two-year reach back damages provision in Title VII as clearly indicating congressional intent that prior acts of discriminatory activity not all be wiped away on the 181st day after their commission.
In the end, although Ms. Ledbetter lost at court, she won the day with the enactment of the Lilly Ledbetter Fair Pay Act of 2009, which allows allegations of pay discrimination with the issuance of each paycheck allegedly tainted by past discrimination. Essentially, this Act overturned the Ledbetter decision.
I labored to set out some of the salient facts and history of the case to bring home what I meant by the view that law is either steel or putty. Justice Alito for the majority is “steel” in that he looked only at what occurred in the 180 days prior to Ledbetter’s complaint to the EEOC. Alito essentially ignored the reality of the workplace, and – my bias here – trampled over the Court’s precedents to get to his conclusion.
Justice Ginsberg is “putty” looking at the application of the law to the facts at issue, and the context in which those facts arise. She looked at the cumulative impact of prior discrimination and invoked Title VII’s two-year reach back provision to assert congressional intent that at least some measure of prior discriminatory acts are compensable.
And this is the value of Justice Ginsberg and the enormity of the loss we’ve suffered with her passing. In this case, you have the individual of modest means taking on a big corporation. If you read Ginsberg’s dissent, she wants to give the individual a chance of prevailing in her (factually unrefuted) claim of sex discrimination. The individual ought not have been precluded from bringing a claim because of a mechanical timeline barring her from reaching the employer’s past discriminatory practices to make her case.
In this and other instances in her long judicial career, Justice Ginsberg didn’t strive for specific outcomes, but worked to arrive at results that we all should want – justice. Simple justice.
To answer the question about why not just have judges appointed to a court who will follow the law, my question is what “law”? Is it the law that is mechanically followed, irrespective of the underlying facts of the case, or is it the law as applied to the facts of the case? There’s a big difference in outcomes.
Ruth Bader Ginsberg saw the law as applied to real people, people often without power in our society. She knew that the law, as applied, could protect individuals from the more powerful elements in our society, democratizing the courts’ dispensation of justice in a specific matter.
And that’s why she will be greatly missed.
Geoffrey A. Schoos, Esq is the author of Access To Justice On The Outskirts of Hope.
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