May 29, 2007

Justice? Screw justice

I really fucking hate the Roberts Court:

The Supreme Court on Tuesday made it harder for many workers to sue their employers for discrimination in pay, insisting in a 5-to-4 decision on a tight time frame to file such cases. The dissenters said the ruling ignored workplace realities.[...]

The court held on Tuesday that employees may not bring suit under the principal federal anti-discrimination law unless they have filed a formal complaint with a federal agency within 180 days after their pay was set. The timeline applies, according to the decision, even if the effects of the initial discriminatory act were not immediately apparent to the worker and even if they continue to the present day.

Six months?! I'm speechless.

Fortunately (if somewhat futilely) Ruth Bader Ginsburg is not.

Justice Ruth Bader Ginsburg read part of her dissent aloud (itself an unmistakable sign of anger), and the tone of her opinion showed how bitterly she differed with the majority. She asserted that the effects of pay discrimination can be relatively small at first, then become far more serious as subsequent raises are based on the original low pay, and that instances of pay inequities ought to be treated differently from other acts of discrimination. For one thing, she said, pay discrimination is often not uncovered until long after the fact.

The majority’s holding, she said, “is totally at odds with the robust protection against workplace discrimination Congress intended Title VII to secure.” She said the majority “does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination.”

“This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute’s broad remedial purpose,” she wrote.


Noumena said...

Sixteen hours later, I think I can sum up the gross injustice of this decision: it requires the employee to file a complaint before discrimination has even happened.

As Bader Ginsburg pointed out, pay discrimination isn't a single act, like a hiring or firing. It's an ongoing process. Say Fred and Ethel start at the same salary of $30k. Every year he's employed, Fred's given a 6% raise. Ever year she's employed, Ethel's given a 4% raise.

According to this ruling, Ethel would have to file a complaint within six months of her first raise. During the first eighteen months, Ethel has received $45,600. During his first eighteen months, Fred receives $45,900. That's a difference of only $300, which is so insignificant (a) Ethel probably wouldn't realise it, and (b) her complaint would probably be rejected. By the time this ruling requires her to file, there is not yet any discrimination.

Now fast forward ten years. Fred, with his 6% annual raise, now makes about $54k a year. And Ethel, with her 4% annual raise, now makes $44k a year. That's serious discrimination.

And think about what happens with more prestigious careers, with a higher starting salary and bigger raises. A starting salary of $60k and annual raises of 10% and 8%, with virtually imperceptible differences by the end of the 180-day window, leads to salaries of about $156k and $130k after ten years.

The percentage of Fred's income that Ethel makes is easy to calculate. Write the raises as decimals, eg, an annual raise of 8% is 1.08. Divide Ethel's decimal by Fred's, and raise to the number of years. For example, with 10% and 8%, after one year Ethel makes about .98, or 98%, of what Fred makes. Ten years on, this is down to 83%.

And all that's assuming, of course, that Ethel is subject to additional discrimination in terms of smaller bonuses, getting passed over for promotions, and being required to work longer and harder.

Unknown said...

The upside is that the Democrats in Congress can fix this mess very, very simply, if they so choose. The Court made its ruling on the basis of statutory interpretation. All Congress has to do is amend the statute.

The rest of us, on the other hand, have a more serious task. We have to elect the Democratic candidate for president in 2008, no matter who it is. If we fail, this will be the tip of the iceberg. The U.S. Supreme Court has been openly hostile to civil rights legislation for twenty years. There's not much a Democratic president can do to change that, but a Republican president, no matter who it is, will make the situation far, far worse. As Bush has already.

Noumena said...

I'm still suspicious of that line of reasoning. A right-of-centre Democrat could easily give conservatives a stronger hold on the bench when Stevens and Souter retire. Would a conservative Democrat really be much better than, say, Rudy Giuliani?

Fortunately, we're far more likely to get a moderate or left-of-centre Democrat with the current frontrunners. `President Rodham Clinton' leaves a nasty taste in my mouth, but I'm willing to grant that she won't fuck things up any worse than they already are, and certainly no worse than any of the Republican frontrunners will.

Unknown said...

Yes, a right-of-center Democrat would be potentially far, far better than Rudy Giuliani, in my view. The way I look at it is like this. For any Republican President, the best nominee you're going get is going to be someone like Kennedy. For any Democratic President, the worst nominee you're going to get is going to be someone like Kennedy. Yes, I suppose in theory it's possible that a right-leaning Democrat would end up doing no better than a Giuliani, but it's impossible that such a Democrat would do any worse.

I'm no more eager to see Senator Clinton become president than you are, and I would be delighted if Obama or Edwards (or Gore?) was able to beat her in the primaries. But if it came down to Clinton vs. Giuliani, Clinton v. Romney, Clinton v. McCain... those are not hard choices.