I Dissent: The Legacy of Justice Ruth Bader Ginsburg

Ruth Bader Ginsburg

Perhaps the most impactful of Justice Ruth Bader Ginsburg’s famous dissents came in a case about gender pay inequity in the workplace: Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007). Plaintiff Lilly Ledbetter began working as a supervisor at the Goodyear Tire plant in Gadsen, Alabama, in 1979. She worked there for 19 years and for most of that time was the only woman manager. In her book, Grace and Grit, Ledbetter says she experienced sexual harassment and heard negative comments from male coworkers about women working in the plant. In 1998, much to her surprise and dismay, Ledbetter found a piece of paper in her mailbox at work that showed her salary $44,724 and the salaries of her male peers: $59,028, $58,464, and $58,226.

In March 1998, Ledbetter filed a charge with the federal Equal Employment Opportunity Commission (EEOC) alleging that Goodyear paid her less because of her sex, in violation of Title VII of the Civil Rights Act of 1964. She received a right-to-sue letter from the EEOC and sued Goodyear. A jury found in her favor and awarded her $3.5 million: $223,776 in back pay; $4,662 for mental anguish; and $3,285,979 in punitive damages. The award was reduced by the trial judge to $360,000. Goodyear successfully appealed to the 11th Circuit on the grounds of untimeliness. And the case ultimately made its way to the U.S. Supreme Court.

The issue for the Court was this: When did the time to file a charge of pay discrimination with the EEOC begin to run? A charge of discrimination must be filed with the EEOC within 180 days (or 300 days in some states like Washington) after the alleged unlawful employment practice occurs. The majority held that each pay-setting decision made by Goodyear started the 180-day clock running.

“Ledbetter should have filed an EEOC charge within 180 days after each allegedly discriminatory pay decision was made and communicated to her. She did not do so, and the paychecks that were issued to her during the 180 days prior to the filing of her EEOC charge do not provide a basis for overcoming that failure.” 550 U.S. at 628-629 (2007).

Justice Ginsburg, no stranger to gender discrimination herself as a young lawyer, dissented. She wrote about the realities of gender pay inequity in the workplace:

“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.” 550 U.S. at 645.

A pay raise is different from an employment decision like a failure to promote, which is a discrete act that is communicated to the employee. Pay disparities, Justice Ginsburg argued, are recurring acts that are cumulative in impact over time. Ledbetter started in 1979 at a salary in line with her male peers, but over time discriminatory yearly pay raises resulted in her falling dramatically behind. The back-pay provisions of Title VII allow for back pay for two years—so according to Justice Ginsburg’s reasoning, Ledbetter should have been able to seek damages for the discriminatory paychecks she received in 1997 and 1998.

Justice Ginsburg, who read her dissent from the bench, said, “Once again, the ball is in Congress’ court.” Congress took the ball and ran with it. The Lilly Ledbetter Fair Pay Act of 2009 provides that the time for filing a charge of pay discrimination starts anew with each discriminatory paycheck. Pub. L. No. 111-2. It was the first law signed by President Barack Obama, with Lilly Ledbetter herself standing next to him. According to an article in the New York Times written shortly after Justice Ginsburg’s death, the justice had a framed copy of the Lilly Ledbetter Fair Pay Act on the wall of her chambers and considered the law’s passage one of her greatest achievements.