Pay-setting Decisions as Discrete Acts: the Court Sharpens Its Focus on Intent in Title Vii Actions in Ledbetter v. Goodyear Tire and Rubber Co., 127 S. Ct. 2162 (2007)

• Publication year: 2021

86 Nebraska L. Rev. 955. Pay-Setting Decisions as Discrete Acts: The Court Sharpens its Focus on Intent in Title VII Actions in Ledbetter v. Goodyear Tire and Rubber Co., 127 S. Ct. 2162 (2007)

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Note(fn*)

Pay-Setting Decisions as Discrete Acts: The Court Sharpens its Focus on Intent in Title VII Actions in Ledbetter v. Goodyear Tire and Rubber Co., 127 S. Ct. 2162 (2007)

TABLE OF CONTENTS

I. Introduction ....................................................... 956
II. Background ........................................................ 957
A. Overview of Employment Discrimination Law Under
Title VII ...................................................... 957
1. Disparate Impact Theory ..................................... 958
2. Disparate Treatment Theory .................................. 959
3. Discriminatory Pattern-or-Practice Cases .................... 960
B. Relevant Supreme Court Title VII Cases Leading
Up to Ledbetter ................................................ 960
1. United Airlines Inc. v. Evans and the
Requirement of Present Intent in Disparate
Treatment Cases ............................................. 961
a. The Court's Treatment of Intent in
Discrimination Cases ..................................... 962
2. Bazemore v. Friday and Discriminatory Pay
Structures .................................................. 964
3. National Railroad Passenger Corp. v. Morgan
and the Constraining of the Continuing
Violations Theory ........................................... 965
C. Between Disparate Treatment and Disparate
Impact ......................................................... 967
III. Ledbetter v. Goodyear Tire and Rubber Co., Inc. .................. 969

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A. Facts, Holdings, and Procedural Background of
Ledbetter v. Goodyear ......................................... 969
B. The United States Supreme Court Decision ...................... 971
IV. Analysis .......................................................... 977
A. Pay-Setting Decisions: Discrete Acts or Repeated
Conduct? ....................................................... 978
1. Morgan Changes the Field of Play ............................ 978
2. Failings of "Discrete Acts" as Static
Classifications ............................................. 979
a. Did Morgan Preclude a "Hostile Pay
Environment" Claim? ...................................... 980
B. Disparate Pay in the Post-Ledbetter Era ........................ 981
1. Hostile Pay Environment: The Individual
Plaintiff ................................................... 982
2. Hostile Pay Environment: Pattern-or-Practice
Claims ...................................................... 983
V. Conclusion ......................................................... 985

I. INTRODUCTION

Discriminatory pay-setting decisions can present unique challenges to both employees and employers. One of the chief problems created by such decisions is delay: the cumulative and often secretive nature of discriminatory pay-setting decisions can cause large lapses of time between the decision and when employees begin to feel they are being treated unfairly. This lapse of time can also cause unfair prejudice to employers, who may no longer have sufficient access to the facts and knowledge of the circumstances necessary to mount a defense.

Facially neutral "merit-based" compensation systems can often be subjective, leaving plenty of room for employer bias and prejudice to manifest itself in the form of discriminatory pay-setting decisions. One isolated discriminatory pay-setting decision made early in an em-ployee's career may set the basis from which all subsequent non-dis-criminatory compensation decisions are made. Therefore, one isolated decision can continue to adversely affect an employee's compensation for years thereafter. Particularly in the context of large institutions, the passage of time from the initial discriminatory decision can undermine the ability of present employers--who may feel no discriminatory animus towards the employee--to detect the past wrong.

In Ledbetter v. Goodyear Tire and Rubber Co.,(fn1) the United States Supreme Court held in a 5-4 decision that plaintiffs bringing claims under Title VII of the Civil Rights Act of 1964(fn2) may not impute intent

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from past discriminatory pay-setting decisions in order to make the present effects of such decisions independently actionable.(fn3) Ledbetter had alleged that a series of discriminatory pay-setting decisions spanning her 19 year career had resulted in her being paid considerably less than her male counterparts.(fn4) The Court held that pay-setting decisions are properly characterized as "discrete acts" as defined by National Railroad Passenger Corp. v. Morgan,(fn5) and must therefore be reported to the Equal Employment Opportunity Commission (EEOC) within the statutory filing period, which is 180 days.(fn6)

If indeed the Court in Ledbetter made a zero-sum classification of pay setting decisions as discrete acts, it misinterpreted the subtle command of Morgan, which was that a court should find that an act of discrimination is discreet when an employee is capable of identifying the conduct as discriminatory and actionable. This Note will show the reader that, depending on the circumstances in which they arise, pay-setting decisions may be properly characterized as either actionable "discrete acts" or "hostile work environment" claims under Morgan. Part II will provide the necessary background for this assertion, beginning with a brief overview of Title VII and then addressing the Court's use of intent in Title VII and other areas. Part II will also highlight the important implications of the Court's Title VII cases leading up to Ledbetter. Part III will lay out the procedural background of Ledbetter and then set forth the holdings of the Supreme Court, noting the arguments of both the majority and the dissent. Finally, Part IV will examine the consequences of a shift in Title VII jurisprudence that took place after Ledbetter brought her claim, but before the Supreme Court granted certiorari. Also in Part IV, the precise language of the holdings in Ledbetter will be contrasted with the Court's precedent in order to determine if the door has indeed been closed on plaintiffs who wish to bring Title VII discrimination actions for pay-setting decisions that span careers of several years.

II. BACKGROUND

A. Overview of Employment Discrimination Law Under Title VII

Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, prohibits employment discrimination on the basis of race, color, sex, religion or national origin.(fn7) The statute prohibits

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acts of intentional discrimination as well as facially neutral employment practices or actions that have a disparate impact.(fn8) An employee alleging a violation of Title VII must exhaust administrative remedies before filing a suit against an employer.(fn9) This exhaustion-of-remedies requirement reflects Title VII's function as a remedial measure that "seeks to remedy discrimination through conciliation and coopera-tion."(fn10) To provide the necessary background for understanding the Court's decision in Ledbetter, this section will address the Title VII concepts of disparate impact theory, disparate treatment theory, and discriminatory pattern-or-practice claims.

1. Disparate Impact Theory

The disparate impact theory was first recognized by the Supreme Court in Griggs v. Duke Power Co.(fn11) Disparate impact theory addresses facially neutral employment practices that have a disproportionately adverse effect on members of protected groups,(fn12) and permits a finding of discrimination regardless of intent.(fn13) For a plaintiff to prove disparate impact discrimination, it is not sufficient to merely point to a statistical disparity in an employer's workforce. Instead, the plaintiff must identify the particular employment practice that is being challenged as responsible for the alleged disparity.(fn14) The

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employer must then show that a business necessity justifies the challenged practice in order to escape liability.(fn15)

2. Disparate Treatment Theory

Disparate treatment, on the other hand, refers to an employer's actions against an individual because of the individual's membership in a protected class and requires a showing of discriminatory intent.(fn16) To prove intentional disparate treatment under Title VII, an employee or applicant must first establish the minimal requirements of a prima facie case, as set forth in the seminal disparate treatment cases Mc-Donnell Douglas Corp. v. Green(fn17) and Texas Department of Community Affairs v. Burdine.(fn18) To prove a prima facie case, an employee must show 1) that the plaintiff belongs to a protected class; 2) that he or she applied and was qualified for the position or benefit; 3) that despite being qualified, he or she was fired, not hired, not promoted, etc. with respect to the position; and 4) that the position thereafter remained open and was ultimately filled by, or the benefit conferred to, someone outside the protected class.(fn19) Once the court finds that the plaintiff has established a prima facie case, the employer then must rebut the plaintiff's prima facie case by producing a legitimate, non-discriminatory explanation for the adverse employment action.(fn20) At this point in order to prevail, the employee or applicant must show that the employer's proffered reason for the adverse action was a pretext for unlawful discrimination.(fn21) The Supreme Court's decision in St. Mary's Honor Center v. Hicks(fn22) further refined the McDonnell Douglass factors by holding that, because the burden of persuasion never shifts, the plaintiff in a Title VII action must still persuade the trier of fact that the employer acted out of an intent...