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The U.S. Supreme Court’s May 29 Ledbetter v. Goodyear Tire decision got it wrong � the majority opinion views the civil rights laws as an obstacle course or a series of hurdles that the employee has to overcome in order to vindicate her rights to be free of discrimination and retaliation. Lilly Ledbetter was a female employee at Goodyear’s Gadsden, Ala., plant, who was paid significantly less than her male co-workers. Since Goodyear, as do most private employers, keeps salary information confidential, Ledbetter did not realize for a number of years that Goodyear’s setting of her compensation could have been motivated, at least in part, by the bias of her former supervisors. At trial, Ledbetter prevailed by presenting evidence that one supervisor admitted that Goodyear’s explanation that she had “poor performance” was pretextual since she received a “top performance award” in one year; that another supervisor was openly biased against women in the workplace; and that the plant manager made sexist remarks about women in the workplace. Ledbetter also presented testimony from two female managers who confirmed that they, too, suffered from discrimination in the workplace, including disparate pay. Motivation to conceal data The majority opinion ignored this evidence, which the jury found compelling in reaching a verdict for Ledbetter, and instead created a new procedural hurdle for plaintiffs bringing suits pursuant to Title VII of the Civil Rights Act of 1964. Under Ledbetter, employees have to file an Equal Employment Opportunity Commission (EEOC) charge within 180 or 300 days after the employer makes a discriminatory pay decision, not when the employee first learns that the employer’s decision was motivated by discriminatory intent. Now, employers will be motivated as never before to conceal compensation information from their employees; employers may also use their employee handbooks to forbid employees from discussing compensation with each other. That way, employers can prevent employees from realizing that intentional discrimination may be at work. The majority’s opinion refused to allow Title VII plaintiffs to invoke the doctrines of equitable estoppel and equitable tolling. The federal and state courts have applied these doctrines to a wide range of statutory and common law claims, not only employment cases, to find that the employer’s conduct concealed information from the plaintiff, or otherwise lulled the plaintiff into inaction, and that an employer should not be rewarded for concealing its discrimination. There is no reason that these judicially developed doctrines should not be used in the employment arena for Title VII plaintiffs. The anti-discrimination statutes are neither a track meet, nor a race to the finish line, and the courtroom is not an obstacle course. Instead, these statutes are designed to protect employees from discrimination and retaliation. In fact, Ledbetter, like many other employees, had allegedly overcome every hurdle in her career � except for Goodyear’s discrimination against her. Justice Ruth Bader Ginsburg, in her dissent, recognized that the high court has twice before got it wrong on Title VII claims by creating new procedural hurdles that were “incompatible with the statute’s broad remedial purpose.” The Civil Rights Act of 1991 was enacted, in part, to supersede or reverse aspects of the court’s holdings in Wards Cove v. Atonio (1989) and Price Waterhouse v. Hopkins (1989). She specifically called upon Congress “to correct this Court’s parsimonious reading of Title VII.” If Congress remedies the Ledbetter decision and legislates that employees may file an EEOC charge once they learn that their compensation is lower because of past discrimination, employers will not be faced with an onslaught of losing jury verdicts based on decisions made 20 years ago, as the majority needlessly bewails. Employers can still argue, based on the plaintiff’s allegations, that the plaintiff knew that there was discrimination, but waited too long to file an EEOC charge. The Ledbetter decision is a radical departure, as it now denies meritorious plaintiffs their day in court. Lynne Bernabei is a founding partner of Washington-based Bernabei & Wachtel, where she handles claims of civil rights violations, discrimination and other employment and contract disputes. Alan R. Kabat is a partner at the firm.

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