After the recent Supreme Court ruling concerning pay discrimination, perhaps every little girl in the land should be taught this nursery rhyme.  Although not as high caliber poetry as Humpty Dumpty, the rhyme warns of the irreparable harm that may result if a woman fails to take legal action the moment she suspects that her paycheck is smaller than that of her male counterparts. 

    The new blindingly-conservative Supreme Court majority held in Ledbetter v. Goodyear Tire & Rubberthat employees who suspect pay discrimination must now complain within 180 days of the employer’s salary decision, or forever forfeit their right to challenge the subsequent effects on their income.  While some states do provide a marginally more realistic 300 days for filing, and will continue to do so, these deadlines are unusually short, and inappropriate.  Such requirements ignore the difficulty of discerning pay discrimination in the workplace.  Moreover, as Justice Ginsburg describes in her dissent, the Court’s cut-off point ignores the fact that a salary decision “infected” by discrimination continues to plague an employee’s earnings long after the initial discriminatory decision.

    Ms. Ledbetter, the only female working as an area manager at Goodyear’s Gadsen, Alabama plant, earned less than all fifteen of the male managers.  A jury found that the pay disparity stemmed in large part from discriminatory conduct by her past manager who had believed that Ms. Ledbetter’s rejection of his sexual advances justified lower pay raises for her.

    Prior to the Supreme Court’s ruling, challenges to paycheck disparities were governed by the paycheck accrual rule, which recognized that an employer’s initial discriminatory pay decision takes effect again and again with each unfairly low paycheck.  As long as an employee filed her claim within the statute of limitations for at least one of these paychecks, her claim was examined as part of an on-going practice of discrimination. 

    This approach acknowledged that even a small disparity in one paycheck accumulates over the years in to a big difference in earnings.  For example, one brief submitted to the Court by women's organizations noted a study showing this cumulative effect.  The study projected that a woman whose starting salary was just $5,000 less than a male colleague's would have a lifetime earnings gap of more than half a million dollars -- when interest and differences in retirement benefits and social security are included -- even if the two had received identical percentage raises every year.

    But the Supreme Court has now ruled that the clock starts running immediately after the “discrete act” that sets the initial discriminatory pay level.  Ledbetter’s claims were rejected as untimely.  Tick tock block.

    Discovering pay discrimination is difficult.  How many of us know even what our best friends are earning -- never mind knowing what our co-workers earn?  Moreover, many companies have policies in place that forbid employees from disclosing their salaries, while others simply rely on our own prudishness towards discussing such matters in the lunchroom.

    In Lilly Ledbetter’s case, after years of hearing rumors that she was underpaid, she found out what three other male managers earned after a detailed anonymous note was left in her mailbox.  As Ledbetter described it to Congress: “It turned out that I ended up getting paid what I did because of the accumulated effect of pay raise decisions over the years.  In any given year, the difference wasn’t that big, nothing to make a huge fuss about all by itself.”

    Ironically the employer-friendly basis for this opinion will also cause headaches for the boss.  The decision encourages employees to shoot first and ask questions later, creating incentives for employees to file charges with the Equal Employment Opportunity Commission the moment they suspect discriminatory motives lie behind a pay decision.  The employee who is slow to formally cry discrimination could forever forfeit the right to challenge the initial unfair decision.

    The Equal Pay Act of 1963 will continue to offer some (narrower) relief to victims of pay discrimination who fail to meet the Supreme Court’s strict deadlines for Title VII employment discrimination claims.  However, an Equal Pay Act violation is far more difficult for an employee to prove and also offers far more limited relief, providing only two to three years of back pay.  (Ledbetter did not appeal her Equal Pay Act claim, and is now retired from Goodyear.)   Moreover, the Equal Pay Act only covers gender-based claims and offers nothing to those who are victims of discrimination based on race, color, religion, and national origin -- they may only seek relief under the now-weakened Title VII provisions.

    Fortunately Congress has the ability to “fix” the Supreme Court’s faulty interpretation of Title VII.  To preserve the spirit of the anti-discrimination law, the House has introduced legislation -- coyly named The Lilly Ledbetter Fair Pay Act -- to remedy the situation and ensure that an employee can use evidence of past unequal pay as proof of present day discrimination.  The Act restores the protections against unfair pay decisions that Title VII had provided before the new majority took their gavels to it.  Pay discrimination claims could be filed within 180 days of the issuance of a discriminatory paycheck.  A yet-to-be introduced Senate version would also remove the miserly cap on Title VII damages, making the amount comparable to remedies in other civil rights laws.

    Congress has applied such fixes before – for example, enacting the Civil Rights Act of 1991 when the Supreme Court interpreted Title VII too stingily.  Now similar repairs are needed, and the clock is running.