Supreme Court Slams Equal Pay

Legal Corner

Volume CVIII, No. 2February, 2008

Harvey Mars, Esq.

When it comes to the Supreme Court, justice is often dependent upon one vote. Sometimes the swing vote will herald enlightened and progressive results.

For instance, in 1937, despite strong political resistance, the Supreme Court said that the National Labor Relations Act was constitutional. The decision was 5 to 4. The court found that the labor law was as a valid exercise of Congress’s ability to regulate interstate commerce. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

But sometimes the swing vote is decidedly unenlightened.

That’s what happened last year in another 5 to 4 vote, Ledbetter v. Goodyear Tire Company, 127 S. Ct. 2162 (May 29, 2007).

The decision makes it harder for workers to claim pay discrimination based on sex.

Specifically, it constrains a litigant’s ability to proceed on an Equal Pay Act claim.

The Equal Pay Act is the statute that requires similarly situated male and female employees to receive the same rate of compensation from their employer.

In its decision, the court unexpectedly rejected an Equal Pay Act claim because it was allegedly filed after the statute of limitations had expired.

Few — if any — Equal Pay Act claims will survive the aftermath of this management-oriented decision!


The decision hinged on the applicability of a long-established legal concept of “continuing violation.”

The Supreme Court rejected applicability of this concept, even though it had been applied by federal courts ever since the inception of the Equal Pay Act.

The Equal Pay Act, like Title VII, has a requirement that before a suit can be initiated, a complaint must be filed with the Equal Employment Opportunity Commission within 180 days (or 300 days in some circumstances).

If the claim is not filed within that time frame, it is deemed “time barred” and dismissed.

Under certain circumstances, however, courts find a “continuing violation,” one in which the discriminatory practice is ongoing.

This permits a litigant to proceed, even if the time to file with the EEOC had long expired.

In these instances the time limits to file a claim would not expire so long as the statutory violation continued.

For instance, sexual harassment in a hostile work environment is often deemed a “continuing violation” because there are usually many interrelated incidents which comprise the claim that extend over a long period of time.

Typically, Equal Pay Act suits easily qualified for continuing violation status since each disparate pay check received by a litigant was considered to be a separate but related incident of discrimination.

But now, the Supreme Court says that a litigant must file an Equal Pay Act claim within 180 (or 300) days of the first instance that the pay disparity actually occurred — or lose the claim forever, unless they can actually prove discriminatory intent on the part of the employer.

Since it’s impossible for most workers to know exactly when and how their bosses decide on pay issues, the Supreme Court’s decision is an incredibly inequitable one.

In light of this decision, employers will be able to circumvent any Equal Pay Act claim simply by keeping pay rates a secret from employees.

Needless to say, employer advocates are absolutely thrilled with this decision.


As expected, there has been a huge outcry to Congress, which has the power to close the loophole created by this decision.

In fact, Ruth Bader Ginsburg, the only remaining woman on the bench, remarked in a scathing dissent that the ball was now in Congress’s court to correct this decision.

Fortunately the legislature listened and quickly reacted.

A few months later, the House passed H.R. 2831, the Ledbetter Fair Pay Act of 2007, which reinstates the “paycheck accrual rule” that was in effect prior to the Supreme Court’s ruling.

A companion bill was proposed in the Senate.

Each Local 802 member should now contact their Senate representatives to demand that they support this legislation when it comes before them.

The protection provided by the civil rights statutes — such as the Equal Pay Act — are too precious for union members to allow to be compromised.