Bench Memos

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Piling On With Ginsburg


Justice Ginsburg’s political grandstanding (see here and here) in the Title VII Ledbetter case has predictably triggered a lot of piling-on from her allies.  For example, in this essay in Newsweek, Ellis Cose asserts that Justice Alito’s majority opinion “was striking for its lack of empathy, for its almost mocking view of Ledbetter’s efforts to seek redress and for its lack of connection to the world as experienced by those totally lacking real power.”  But there is nothing in Alito’s opinion that is “almost mocking,” and the job of judges is to enforce the law, not to express “empathy” or to rewrite the law to reflect Cose’s policy views.


Cose also complains that the ruling was “harsh and rigid”.  But every enforcement of a time limit against a plaintiff can be so characterized.  Time limits, by their very nature, operate to bar some meritorious claims.  What Cose’s complaint ignores is that time limits also serve an important public purpose.  As Justice Alito’s opinion explains, Supreme Court precedent recognizes that the EEOC filing deadline is part of Title VII’s “‘integrated, multistep enforcement procedure’” and “reflects Congress’ strong preference for the prompt resolution of employment discrimination allegations through voluntary conciliation and cooperation.”  Moreover, like statutes of limitations, the filing deadline serves a policy of repose by “‘protect[ing] employers from the burden of defending claims arising from employment decisions that are long past.’”  (The actual complaint in Ledbetter relied heavily on the misconduct of a single Goodyear supervisor during the early 1980s, but Ledbetter did not file her claim until 1998 and the supervisor had died by the time of trial.)


Ginsburg’s policy concerns are also not reflected in the rule that she proposes.  On the one hand, the rule is too sweeping.  As Justice Alito points out, Ginsburg “proposes that we adopt a special rule for pay cases based on the particular characteristics of one case that is certainly not representative of all pay cases and may not even by typical.”  But her rule would not bar claims “even if the employee had full knowledge of all the circumstances relating to the 20-year-old decision at the time it was made.” 


On the other hand, Ginsburg’s policy concerns would not limit her rule to the pay-discrimination context.  Ginsburg maintains that pay disparities are different from discrete actions like failure to promote or refusal to hire.  But consider a plaintiff who was denied a job and discovers only years later that unlawful discrimination was the reason.  Wouldn’t it be equally “harsh and rigid” and lacking of “empathy” to bar that plaintiff’s suit?


By the way, Ginsburg herself, as a D.C. Circuit judge, never had a single black person among her more than 50 hires.  In classic limousine-liberal fashion, that fact didn’t stop her from opining that a manifest imbalance in the racial composition of an employer’s work force justified court-ordered quotas even in the absence of any intentional discrimination on the part of the employer.

Tags: Whelan


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