Continuing violation doctrine

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Discrimination in pay is a discrete act, and a discrimination action must be brought within the specified period, or it is time-barred, the U.S. Supreme Court held on May 29.

In so holding, the decision re-verses the governing law in the Seventh Circuit.

Lilly Ledbetter was employed by Goodyear Tire and Rubber Company from 1979 until 1998.

In 1998, she sued in federal court, asserting a Title VII pay discrimination claim.

The Eleventh Circuit reversed her award of backpay and damages, holding that a pay discrimination claim cannot be based on a decision that occurred prior to the last pay decision that affected the employee’s pay during the charging period.

The Supreme Court accepted review, but affirmed in a decision by Justice Alito. Justice Gins-burg dissented, in an opinion joined by Justices Stevens, Bre-yer, and Souter.

The majority based its holding on a long line of cases requiring that a discrimination action be based on recent acts: United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977); Delaware State College v. Ricks, 449 U.S. 250 (1980); Lorance v. AT&T Technologies, Inc., 490 U.S. 900 (1989); and National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002).

Quoting the opinion in Evans, the court iterated, “A discriminatory act which is not made the basis for a timely charge … is merely an unfortunate event in history which has no present legal consequences.”

The court concluded that to hold to the contrary would “shift intent from one act (the act that consummates the discriminatory employment practice) to a later act that was not performed with bias or discriminatory motive. The effect of this shift would be to impose liability in the absence of the requisite intent.”

Turning to policy considerations, the court noted that permitting suit would allow lawsuits over pay decisions that could be 20 years old. In the case at bar, the court noted, the allegedly discriminatory decisions were made by a supervisor who has since died.

The Dissent

Justice Ginsburg’s dissent emphasized the inability of employees to realize that they have been discriminated against, and asserted that, for this reason, pay disparities should be treated differently than other adverse employment decisions, such as termination, failure to promote, or refusal to hire.

The dissent argued, “Pay disparities often occur, as they did in Ledbetter’s case, in small increments; cause to suspect that discrimination is at work develops only over time. Comparative pay information, moreover, is often hidden from the employee’s view. Employers may keep under wraps the pay differentials maintained among supervisors, no less the reasons for those differentials.”

The decision effectively reverses the governing Seventh Circuit precedent, established in Hildebrandt v. Illinois Department of Human Resources, 347 F.3d 1014 (7th Cir. 2003).

The Seventh Circuit in Hildebrandt concluded that each discriminatory paycheck was a discrete discriminatory act, not subject to the continuing violation doctrine.

However, the court concluded that the plaintiff could recover damages for each paycheck issued within the 300 day statute of limitation period. Were the facts in Hildebrandt to reoccur, the plaintiff would recover nothing for back pay, because all of the discriminatory acts had occurred more than 300 days prior to the filing of the claim.