Thursday, January 08, 2009

Some news is good news

Via the New York Times opinion section:

President-elect Barack Obama and Democrats in Congress are already signaling a welcome new seriousness in Washington about protecting civil rights after eight years of erosion.

They are planning swift action on legislation to overturn an unjust 2007 Supreme Court decision that has made it much harder for people to challenge illegal discrimination in employment, education, housing and other fields.

The 5-to-4 ruling in 2007 involved Lilly Ledbetter, a supervisor at a Goodyear Tire and Rubber Company plant in Alabama. She received much smaller raises over several years than men in comparable positions.

Tossing aside longstanding legal precedents, government practice and a jury verdict in Ms. Ledbetter’s favor, the narrow Supreme Court majority decided that she was entitled to nothing. They ruled that Ms. Ledbetter should have filed her claim within 180 days of the very first decision to pay her less. The justices rejected the argument that each subsequent discriminatory paycheck was a new violation of the law.

The impact of the Ledbetter decision has been broad injustice. As Robert Pear reported in The Times on Monday, courts around the country have cited the decision hundreds of times as a reason for rejecting lawsuits claiming discrimination based on race, sex, age and disability, without regard to the underlying merits of the individual cases.

The House is expected to vote this week on a legislative fix that would restore the law’s original intent. The measure would state that a violation occurs each time a person receives a paycheck resulting from “a discriminatory compensation decision.” The Senate is expected to take up the bill soon after. It merits passage, along with a related bill, the Paycheck Fairness Act, which contains other useful steps for combating gender-based wage discrimination.

More from the Robert Pear article mentioned above:

Mr. Obama describes the bill as part of a broader effort by his incoming administration to “update the social contract,” reinvigorate civil rights and close the pay gap between men and women.

At issue in the Ledbetter case was the deadline for filing charges under Title VII of the Civil Rights Act of 1964. The Supreme Court did not deny that Ms. Ledbetter had suffered discrimination, but said she should have filed her claim within 180 days of “the alleged unlawful employment practice” — the initial decision to pay her less than men performing similar work.

The Supreme Court rejected the argument that each paycheck was a violation of the law.

Writing for the majority, Justice Samuel A. Alito Jr. said the statute of limitations must be strictly interpreted to protect employers against “stale claims” and “tardy lawsuits.”

In a dissenting opinion, Justice Ruth Bader Ginsburg said Ms. Ledbetter’s pay fell behind that of men because of “a long series of decisions reflecting Goodyear’s pervasive discrimination against women managers in general and Ledbetter in particular.”

Justice Ginsburg invited Congress to correct the court’s “cramped interpretation” of the law.

That is exactly what Speaker Nancy Pelosi and other Democrats say they plan to do...

...In the last 19 months, federal judges have cited the Ledbetter decision in more than 300 cases involving not only Title VII, but also the Age Discrimination in Employment Act; the Fair Housing Act; a law known as Title IX, which bars sex discrimination in schools and colleges; and even the Eighth Amendment to the Constitution, which protects prisoners’ rights.

Lower-court judges have been influenced by two particular aspects of the Ledbetter decision. The Supreme Court drew a sharp distinction between “discrete acts” of discrimination and the continuing effects of past violations. Employers, it said, do not necessarily violate the law when their recent actions have no discriminatory purpose, but perpetuate the adverse effects of pay decisions made in the past.

The Ledbetter precedent has stymied a wide range of civil rights plaintiffs.

...The United States Court of Appeals for the Ninth Circuit extended this logic to a housing discrimination case in Idaho. The ruling significantly limits the ability of plaintiffs to enforce their rights under the Fair Housing Act.

The Idaho plaintiff, Noll Garcia, uses a wheelchair. He said his apartment violated federal standards because it was not readily accessible. Under the law, he had two years to challenge a “discriminatory housing practice” in court.

Chief Judge Alex Kozinski, writing for the majority, said this two-year period began when construction of the building was complete. Mr. Garcia lost out because he filed suit in 2003 — within two years of renting the apartment, but 10 years after it was built.

Three dissenting judges said the decision showed how “statutes of limitations have been twisted by courts to limit the scope and thrust of civil rights laws.”


Kristen said...

Eh...I'm happy about it but not heartened.

The problem IMO is the judges.

Ledbetter was just wrongly decided. The legal theory underlying case makes no sense.

The decision was results driven. Some judges don't like these cases. They think they're frivolous, boring and a waste of their time. Conservative judges in particular also hate these cases since they undermine "legitimate" business and turn the courts into what they consider a "judicial pricing police". So they find any excuse they can to dismiss the case.

The Ledbetter decision was just one reason to dismiss...and its subsequent broad application to things that clearly have no relation to the issue in Ledbetter is just a further illustration of my point above.

Even if we fix the Ledbetter decision, judges have within their discretion a myriad of ways to dismiss or force a settlement that are not appeal able. The Ledbetter case just gave them the easiest way to do so. (You don't even have to hear the facts!)

So until we resolve the underlying problem...all of Bush's appointees to the federal bench...this is going to be consequence.

Certainly kudos to O for fixing it...but I'm still going to have to tell pro bono clients that for the most part their SOL when it comes to employment discrimination claims.

belledame222 said...

Thanks for the legal perspective. Yeah, I didn't think it was going to be the sun'll come out, y'know; it's just...glad he's addressing it, as you say.

Lifting the global gag rule is also something that's a sort of pyrrhic "yay" in that "okay, that almost gets us back to a -starting- point..."

Motto said...

To Whom It May Concern,

My name is S.Aran, I am a representative of Dream Activist where we are currently conducting a massive awareness and recruitment campaign in order to garnish support for the Dream Act.

I am an undocumented student, and find it extremely difficult to pursue my college education due to a status I inherited from my parents. Being brought to the United States at the age of 12, raised and brought to an American lifestyle, to graduating high school in 2007 at the top of my class. The DREAM Act would help me, and students in my situation, realize our dreams of becoming active members of society by allowing us to attend school or join the military.

Currently we have a project going on at CHANGE.ORG, a website that will present the top 10 ideas that it generates to the Obama administration upon its inauguration. The members of your organization are more than welcome to vote on our idea in order to keep it in the top 10. Heres a link to the site:


YOUR BLOG, is probably the most invaluable tool you have in order to help us.
Starting January 5th, the site and voting polls will re-open and we will need as many votes as possible in order to defeat our opposition; in which, we have only 10 days to gather enough votes so that our idea move forward and get presented to the Obama administration upon inauguration. There will be a widget that you can post on your blog to allow your readers to vote on our cause, and do not forget to make a post public for viewing and circulate it far and wide.

As of right now WE HAVE LESS THAN A WEEK TO TAKE ON THIS ACTIVITY, so I urge you to please post as quickly as you can and get the word out! We need probably 2000 votes in order to make it to the top 10 and we are really not as far from that.

Another project we would like for you to be involved is the petition we will have online as of January 21 ( This petition is being hosted by DreamACTivist and the United We DREAM Coalition, in which we will aim to gather 65,000 signature by March 1st of this year.

Remember that is now a new year, this is our time to bring the Change that was promised to us. Let us work together towards a common goal, and enjoy the role we play in society as activists and advocated for not only immigrants, but education as a whole.

Please, let me know if you are interested, as the more help we get the better and faster our mission can get accomplished. If you have any questions surrounding the bill, or anything in relation to DO NOT HESITATE to contact me at this email address.

Hope we can keep in touch.
Thanks for your attention.



DREAM Activist Representative and Editor

belledame222 said...

Oo! Sorry, 'd love to help, but I've committed to helping out this Nigerian royalty member for the forseeable while. Bit busy. I have some extra Viagra I could donate, though; will that do?

CrackerLilo said...

Your second comment made me laugh and laugh!

Every time I start doubting Obama, he reminds me that I made a decent choice after all. Weird.

ginmar said...

How long before the PUMAs twist this to being about how Obama hates women? Oh, too late! Ann Bartow and Any Siskind are on it.

I can sleep easier now.

belledame222 said...

Um...seriously? How's that work, exactly?

belledame222 said...

...Bartow is a PUMA too, huh. well, hey.

ginmar said...

Check Jezebel dot com. If I have to look there after all the Dan Savage column comments about 'why didn't she....?' I'll kill. Seriously, what the fuck is this? This is NOT advanced feminism? This is NOT complicated stuff. And yet here are all these supposedly sophistocated people not getting that....Okay, I'm shutting up now, lest I explode.

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