We Have Moved!

Two law professors are carrying on a friendly discussion of the Supreme Court’s recent decision in Ledbetter v. Goodyear Tire (for the basics of the Court’s Ledbetter decision, go here).

Ross Runkle of Ross’ Employment Law Blog argues that the case was rightly decided for the reasons set forth in the majority’s opinion.

Paul Secunda, of Workplace Prof Blog, begs to differ, outlining his argument that the decision was wrongly decided here.

Interestingly, the two appear to agree on the relevant question: Whether, under existing precedent [the Morgan case], is pay discrimination a discrete act like a termination or failure to promote or is it more like a cumulative series of individual events like hostile work environment sexual harassment? If the former, cases like Ricks and Evans apply, and you can’t depend on stale claims to give life to connected, but not independently discriminatory, claims. If the latter, you only need one event to occur in the relevant time period, and if each discriminatorily-infected pay check is seen as constituting such an event, the claim may be still timely even though many of the pay decisions and paychecks fall outside the statutory period.

Ross Runkle responds that Secunda and Justice Ginsburg’s decent focus too much on the practical concern that it is unlikely a plaintiff will become aware that she is being discriminated against with regard to pay during the relatively short 180-day limitations period. He argues that this fact, which he allows may indeed be true, is not relevant to the analysis.

Their discussion highlights the importance of how an appellate question such as this is initially characterized. The majority characterized the case as a “pay setting” issue rather than simply a “pay” issue. By framing the issues in this way, the majority’s answer seems only natural. But is that the correct way to set the issue? The discussion will certainly continue.