Employment discrimination law in the wake of Ledbetter: a recommended approach.

• Author: Minsky, Alyssa B.

"Under [the position the Supreme Court adopted in Ledbetter v. Goodyear Tire & Rubber Co., (1)] meritorious claims will be dismissed whenever an employee, through no fault of her own, fails to discover the disparity in her pay or grounds for believing that the disparity was discriminatory, within 180 or 300 days of the pay-setting decision, even when the delay imposes no prejudice upon the employer." (2)

1. INTRODUCTION

   In 2001, American women earned significantly lower salaries than men, with a greater percentage of women in the lowest pay bracket and a larger percentage of men at the opposite end of the earnings spectrum. (3) According to a 2006 United States Census report, the median income for full-time, year-round workers was $42,261 for men, compared with $32,515 for women. (4) The issue of unequal pay is not a novel one; indeed, it has biblical antecedents. (5) Recent studies, however, have shown that the discrepancy between male and female earningssometimes termed the "gender pay gap"--has decreased considerably. (6)

   The Equal Pay Act of 1963 prohibits sex-based wage discrimination. (7) Similarly, Title VII of the Civil Rights Act of 1964 (Title VII) forbids employment discrimination on the basis of sex. (8) The United States Equal Employment Opportunity Commission (EEOC) established federal guidelines that impose the procedure for filing a claim under Title VII. (9) According to the EEOC Compliance Manual, a plaintiff must file a charge within either 180 or 300 days of the unlawful employment practice, depending upon whether the practice occurred in a jurisdiction with a state fair employment practices agency. (10)

   Many jurisdictions apply a discovery rule with respect to statutes of limitations in tort law causes of action. (11) These jurisdictions toll the statute until the plaintiff learned, or reasonably should have learned, that the defendant's conduct caused harm. (12) The Supreme Court has expressly declined to determine whether a discovery rule applies in Title VII claims. (13) In Ledbetter v. Goodyear Tire & Rubber Co., the Supreme Court held that a plaintiff employee must bring suit against his employer within either 180 or 300 days of the intentional discriminatory act. (14)

   This Note addresses the problems in the Ledbetter decision. The first section discusses Title VII, the predominant statute under which plaintiffs may file employment discrimination actions. (15) The following section reviews the policies underlying statutes of limitations and related equitable remedies. (16) The Note then traces the development of employment discrimination law as interpreted by the Supreme Court prior to the 2007 Ledbetter decision. (17) Next, it explores the majority and dissenting opinions of the Ledbetter decision. (18) Finally, this Note will analyze the pending legislation proposed in the wake of this decision (19) and recommend that Congress revise Title VII to include the discovery rule and address the effects such legislation would have on future employee plaintiffs and employer defendants. (20)

2. HISTORY

   1. Title VII

      Title VII prohibits an employer from discriminating against an employee on the basis of race, color, religion, sex, or national origin. (21) The EEOC--the agency responsible for enforcing federal employment discrimination laws--maintains a compliance manual (EEOC Compliance Manual) that provides guidance for handling many of the threshold issues often addressed in Title VII claims. (22) Under Title VII, a plaintiff must file a charge with the EEOC within a specified time--either 180 or 300 days--following the unlawful employment practice. (23)

      When the statutory clock begins to run depends on the type of discriminatory act alleged. (24) A claim of discrimination for a discrete act, such as a failure to promote or termination, must be filed within 180 or 300 days of the date the plaintiff received unequivocal notification of the action. (25) On the other hand, discriminatory paychecks and other repeated occurrences of the same discriminatory employment action can be challenged as long as a single act occurred within the 180- or 300-day filing period. (26)

      To protect victims of subtle discrimination, the EEOC Compliance Manual further provides that the period within which a claim must be filed may be tolled in instances in which the charging party was unaware of facts that should have led the party to suspect discrimination. (27) When an employee has no reason to suspect wrongdoing, then the limitations period will not start running unless the individual has gathered enough information to reasonably believe that a viable claim exists. (28) Plaintiffs, however, must exercise reasonable diligence in seeking information pertaining to the claim or risk losing the benefit of a tolled filing period. (29)

   2. Statutes of Limitations and Discovery Rules

      Statutes of limitations are "heralded bastions of legal certainty" that "are found and approved in all systems of enlightened jurisprudence." (30) In effect, they are designed to further two competing policy interests: providing plaintiffs with a reasonable period of time to present their claims and protecting defendants from having to defend stale claims. (31) Furthermore, these statutes must account for society's interest in both the plaintiff's and defendant's interests. (32)

      At common law, courts narrowly construed, and often equitably tolled, statutes of limitations. (33) Discovery rules are a legislative acknowledgement that a plaintiff who was justifiably unaware of the existence of a claim should have a filing extension until the plaintiff discovers, or reasonably should have discovered, the right to bring a claim. (34) In other words, the discovery rule tolls the limitations period until a plaintiff discovers, or should have discovered, that he has been harmed by the defendant's actions. (35) In the 1970s and 1980s, however, state legislatures began abolishing discovery rules, reasoning that they conflicted with one of the primary goals of statutes of limitations: preventing defendants from having to defend stale claims. (36)

      Federal courts generally apply a discovery rule when the applicable statute is silent on the issue. (37) The Supreme Court has been hesitant to adopt a discovery rule in every instance; for example, in United States v. Kubrick, (38) the Court addressed the issue of when a claim "accrues" within the meaning of the Federal Tort Claims Act for a medical malpractice case. (39) The Court declined an invitation to invoke a discovery rule, reasoning that Congress did not intend to toll the statute of limitations until the plaintiff learned of his claim. (40)

      Similarly, in Rotella v. Wood, (41) the Court declined to adopt a discovery rule under the Racketeer Influenced and Corrupt Organizations Act (RICO). (42) The Court stated that although equitable considerations might justify tolling in some cases, it should be the exception and not the rule. (43) The Court stated that the discovery rule is most appropriate in medical malpractice cases and, furthermore, that the discovery of the injury--not the discovery of other elements that form the cause of action--is what triggers the running of the statute of limitations. (44)

   3. Pre-Ledbetter Employment Discrimination Cases

      In 1975, in Albermarle Paper Co. v. Moody, (45) the Supreme Court held that backpay liability shall not accrue from a date more than two years prior to the plaintiff's filing of an EEOC charge. (46) The Court determined, however, that bad faith on the part of the employer is not a prerequisite for awarding backpay to the plaintiff. (47) Additionally, the Court reasoned that awarding backpay would encourage employers to evaluate their practices in an effort to eliminate employment discrimination. (48)

      Two years later, in United Air Lines, Inc. v. Evans, (49) United's seniority system caused a past discriminatory act to have a present effect, but the Court focused on whether there was any current Title VII violation. (50) United's policy prohibited female flight attendants from marrying, so when the plaintiff married, United forced her to resign. (51) Three years later, the Supreme Court determined that forcing resignations based on a discriminatory marriage policy violated Title VII. (52) Following this decision, United again employed the plaintiff, but treated her as a new employee for seniority purposes. (53) She sued, arguing that "the seniority system g[ave] present effect to a past act of discrimination." (54) The Court rejected this argument, reasoning that "[a] discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed.... [I]t is merely an unfortunate event in history which has no present legal consequences." (55)

      In 1980, the Supreme Court heard two cases relating to Title VII's limitations period, Mohasco Corp. v. Silver (56) and Delaware State College v. Ricks. (57) In Mohasco, the Court discussed the importance of time limitations and rejected the plaintiff's attempt to justify his delayed claim by reading two definitions of the word "filed" into the statute. (58) The Court reasoned that Congress chose short deadlines to encourage plaintiffs to promptly bring all employment discrimination claims. (59)

      In Ricks, the Court held that the limitations period commenced when the college notified the plaintiff that it was denying him academic tenure. (60) The Court reasoned that the only alleged discrimination occurred when the college actually communicated that decision to the plaintiff; therefore, the limitations period began running at that time, notwithstanding the fact that "one of the effects of the denial of tenure--the eventual loss of a teaching position--did not occur until later." (61) In its decision, the Court stressed the importance of honoring time limitations. (62)

      In Zipes v. Trans World Airlines, (63) the Court evaluated...