31 January 2014

Our dysfunctional government works just as intended, thank you very much

Much has been written over the last decade about gridlock and dysfunctional government. Headlines were made about the "Do-nothing Congress" because of the few number of bills that were passed (as if that is somehow a good proxy for progress; but that's for another blog post). Countless suggestions have been made about how to "fix" things. Far fewer have considered the alternative: that our painfully slow, difficult legislative process works just as it was intended. That disagreements among the branches of government are not a bad thing. Here is one such example of how our dysfunctional government works in practice.

Lilly Ledbetter sued Goodyear under Title VII of the Civil Rights Act of 1964 for gender pay discrimination. The provision at issue says that "[a] charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred." Ledbetter's claim was ultimately dismissed by the Supreme Court because she filed years after the alleged unlawful employment practices occurred.

Now to be fair, Ledbetter didn't know about the alleged unlawful employment practices at the time. Four justices were sympathetic to Ledbetter's cause and would have read the provision in light of the broad remedial purpose of the statute. Justice Ginsburg noted that pay disparities often occur in small increments and may not be noticed.

After Ledbetter's claim was dismissed, Congress passed the Lilly Ledbetter Fair Pay Act of 2009, which states that the 180-day statute of limitations for filing an equal-pay lawsuit regarding pay discrimination resets with each new paycheck affected by that discriminatory action. The Act overruled the Supreme Court's decision (Congress can effectively overrule the Court on a statutory decision, but not a constitutional one; for another example, see Employment Division v. Smith, 494 U.S. 872 (1990) and the subsequent RFRA).

This resetting of the statute of limitations with each new paycheck is what Justice Ginsburg had argued for. But if the Court had ruled for Ledbetter in the first place, it seems highly unlikely that the Act would have ever passed. In that case, gender pay discrimination claims would have been based upon a strained Supreme Court interpretation of Title VII, rather than the text of the provision itself. A differently-composed Supreme Court five or ten or twenty years from now could much as easily re-interpret the provision in a narrower way. On the other hand, because the Court interpreted Title VII on its text (as opposed to the broad remedial purpose of the statute), Congress overruled the decision and passed the Act. The Court's new interpretation is now straightforward--the statute of limitations resets with each new paycheck affected by that discriminatory action. The next Lily Ledbetter will have her claim heard.

This interplay between disagreeable branches of government resulted in gender pay discrimination claims that  will have a textual basis in statutory law rather than a strained Supreme Court interpretation of Title VII based upon a controversial 5-4 decision. Surely, this is a better end state for gender pay discrimination claims.

When everyone agrees with one another, you should be very concerned. When that happens, you get the Patriot Act. Is that the functional, agreeable government you want?
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