Can one man make all the difference? He can if he sits on the Supreme Court. People who only casually follow the Supreme Court don't realize how many important decisions are decided by a 5-4 vote. That fifth vote is the tie-breaker on cases involving the First Amendment, presidential power and civil rights. It happened again this week in a decision that made it more difficult for workers to sue their employers for pay discrimination.
In the Ledbetter case, a female employee sued her employer because men were being paid more money. Under the civil rights laws in Ledbetter's state, she had to file her complaint of discrimination in 180 days. She didn't. Instead, she filed it after it became clear that she was the victim of discrimination. In some cases, like sexual harassment, the worker can technically violate the 180 day rule if the "hostile work environment" looks more and more like sexual harassment after 180 days.
The Supreme Court said that pay discrimination is not like sexual harassment because, like cases involving the failure to promote or wrongful termination, the worker knows right away that she is being discriminated against. Except that pay discrimination is more subtle than termination or failure to promote. Employees don't even know what their co-workers are making, and the pattern of pay discrimination takes time. It's not as obvious as being termined.
The Supreme Court rejected the argument that pay discrimination is too subtle to hold the worker to the 180 day limit. So the worker in that case is out of luck. This 5-4 decision was handed down courtesy of the Bush administration, which replaced the more pragmatic Sandra Day O'Connor with the more rigid Samuel Alito. O'Connor liked parsing through the nuances in the law, but hard-liners like Alito will take it down another road. That road means that employees have to jump the gun if they suspect discrimination at work, rather than wait it out to see if the discrimination is real.
Love may be fleeting, but Supreme Court decisions are forever. One President can appoint enough people to the Court to make a real difference in how the law is interpreted. A 5-4 decision may seem razor thin, but a concrete interpretation of the law means the ruling is binding on the courts no differently than a 9-0 decision. The employment discrimination laws are supposed to be broadly interpreted, but the Bush Supreme Court is heading in the opposite direction. In the past, when the Supreme Court issued a crampted interpretation of the employment discrimination laws, Congress amended the law and overruled the Supreme Court decision. Will that happen this time around? Doubtful. The Bush administration filed legal arguments with the Supreme Court in this case in opposition to the plaintiff's claim. Bush will never sign a law that favors plaintiffs in civil rights cases. Something to think about for the next presidential election.
