Civil Rights: Courting Discrimination

On Tuesday, the Court voted 5-4 to "throw out a Goodyear employee's complaint that she earned thousands of dollars less than her male counterparts."

June 1, 2007 by Faiz Shakir, Nico Pitney, Amanda Terkel, Satyam Khanna, and Matt Corley
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Courting Discrimination

Title VII of the Civil Rights Act of 1964 prohibits “employment discrimination based on race, color, religion, sex and national origin.” But unfortunately, inequality still exists, and this week, the Supreme Court sided in favor of discrimination by stripping the civil rights law of “much of its potency.” On Tuesday, the Court voted 5-4 to “throw out a Goodyear employee’s complaint that she earned thousands of dollars less than her male counterparts.” Writing for the all-male majority, Justice Samuel Alito “forced an unreasonable reading on the law, and tossed aside longstanding precedents to rule in favor of an Alabama employer.” Justice Ruth Bader Ginsburg took the unusual step of reading her dissent aloud from the bench, making clear that “the majority [was] not only mistaken, but profoundly wrong.” Discrimination is not “long past,” as the majority tried to argue in this case. Women continue to make just 77 cents for every dollar a man is paid. As the New York Times noted, “The ruling is the latest indication that a court that once proudly stood up for the disadvantaged is increasingly protective of the powerful.”

REWARDED FOR HIDING DISCRIMINATION: Under Title VII, an employee has 180 days to file a complaint of pay discrimination. In Ledbetter v. Goodyear Tire & Rubber Co., the Supreme Court looked at when “that 180-day clock starts ticking.” The majority sided with Goodyear, arguing that the employee, Lilly Ledbetter, waited too long to file. It argued that employees must bring suit “within 180 days after their pay was set,” even “if the effects of the initial discriminatory act were not immediately apparent to the worker and even if they continue to the present day.” But this requirement ignores the realities of pay discrimination. As Ginsburg noted in her dissent, “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.” She added that a woman’s “initial readiness to give her employer the benefit of the doubt should not preclude her from later challenging the then current and continuing payment of a wage depressed on account of her sex.” In Ledbetter’s case, her pay had, over time, fallen approximately 40 percent behind the pay of her male counterparts. In 1998, she was making “$3,727 a month, while the lowest-paid man was making $4,286.” Additionally, she was the “only woman among 16 men at the same management level, who was paid less than any of her colleagues, including those with less seniority.”

SUPREME COURT POLITICKING: Supreme Court justices read aloud dissents “just a handful of times each year.” Justice Ginsburg has gone years without reading one, and has never read more than one in a term — until now. Her oral dissent from Ledbetter was her second this term. In April, Ginsburg dissented from the majority’s decision to uphold a nationwide ban on “partial birth” abortion. She explained that the majority opinion’s language seemed to be based on a deep hostility to women’s rights, rather than on sound scientific evidence or jurisprudence: “The Court’s hostility to the right Roe and Casey secured is not concealed.” For example, Justice Anthony Kennedy, writing for the majority, concluded — without any scientific evidence — that women “come to regret their choice to abort the infant life they once created and sustained.” Ginsburg added that the majority’s “way of thinking reflects ancient notions about womenÂ’’s place in the family and under the Constitution— ideas that have long since been discredited.” “What she is saying is that this is not law, it’s politics,” said Stanford law professor Pamela S. Karlan. “She is accusing the other side of making political claims, not legal claims.” It is significant that the two cases in which Ginsburg orally dissented were ones in which the rights of women were eroded. Alito — who wrote the opinion in Ledbetter and has consistently ruled in favor of racial and gender discrimination — took the place of Sandra Day O’Connor, who had a strong record on gender discrimination and “was offered only secretarial jobs after graduating third from her Stanford Law class.” Similarly, Chief Justice John Roberts once called equal pay for women a “radical redistributive concept.”

DISCRIMATION ‘STILL A MAJOR PROBLEM’: Ledbetter is troubling because it discourages employers from quickly uncovering and correcting pay discrimination. From “2001 to 2006, workers brought nearly 40,000 pay discrimination cases“; many such cases will now be barred. Women will not be the only ones affected either. Title VII also bars discrimination on the basis of race, color, religion, and national origin, and people bringing claims on these other bases may also be restricted by this interpretation of the 180-day rule. “We agree wholeheartedly that sex discrimination against women is still a major problem in the workplace,” said David Grinberg, spokesman for the Equal Employment Opportunity Commission, the federal agency charged with enforcing Title VII that initially ruled in favor of Ledbetter. (The Bush administration nevertheless “disavowed the agency’s position and filed a brief on the side of the employer” when the case reached the Supreme Court.) Women of color are hit hardest by unequal pay. “African American women earn only 68 cents and Latinas 57 cents for every dollar that men earn.” Complaints of discrimination have also increased. Black women “filed 3,898 sex discrimination charges in 1992, and 4,686 in 2003, a 20 percent increase. Hispanic women filed 1,052 charges in 1992 and 1,763 charges in 2003, a 68 percent increase.” In a 2006 AFL-CIO survey, 57 percent of women said that their employers did not provide equal pay to men and women.

CONGRESS ACTING QUICKLY: Congress plans to act quickly to ensure that employees are able to file discrimination complaints after the Supreme Court’s ruling. “As Justice Ginsburg suggests, the ball has now fallen into Congress’ court and we intend to address this ruling,” House Education and Labor Chairman George Miller (D-CA) said on Wednesday. “The Supreme Court’s narrow decision makes it more difficult for workers to stand up for their basic civil rights at work, and that is unacceptable.” Miller and Reps. Rosa DeLauro (D-CA) and Eleanor Holmes Norton (D-DC) plan to introduce such legislation shortly. Sens. Ted Kennedy (D-MA), Tom Harkin (D-IA), Hillary Clinton (D-NY), and Barbara Mikulski (D-CA) announced on Wednesday that next week, they will also offer legislation “to ensure that workers are able to enforce their legal right to equal pay.”


ETHICS — SHILLING FOR JUSTICE DEPARTMENT, SEN. KYL PLACES SECRET HOLD ON OPEN GOVERNMENT ACT: Two weeks ago, a bill called the OPEN Government Act, which is a “bipartisan effort to update the seminal Freedom of Information Act to make the government more open and accountable,” was prevented from reaching a vote on the Senate floor because of a secret hold. When Sens. Patrick Leahy (D-VT) and John Cornyn (R-TX) tried to bring the bill to a vote on the floor, “the vote was blocked by ‘Senator Anonymous.’ Some Republican senator called the Minority Leader’s office and objected to a vote on the bill, but asked for anonymity and did not publicly state a reason for the hold.” Yesterday, the man behind the hold finally revealed himself: Sen. Jon Kyl (R-AZ). Kyl claimed that he placed the hold on the bill because thenJustice Department opposes several provisions that “could force them to reveal sensitive information. In a statement Thursday, Kyl said the agency’s ‘uncharacteristically strong’ opposition is reason enough to think twice about the legislation, and he will block a vote until both sides can work out the differences.” Kyl’s water-carrying for the Justice Department is untenable. The OPEN Government Act overwhelmingly passed the Senate Judiciary Committee. Similar legislation in the House passed in March by 308 to 117. Over 100 organizations have written in support of it. As Leahy put it, “This is a good government bill that Democrats and Republicans alike can and should work together to enact. It should be passed without further delay.”

Valerie Plame Wilson, whose identity as a covert CIA agent was leaked to the press by multiple members of the Bush administration, “sued the Central Intelligence Agency in federal court in New York yesterday over its refusal to allow her to publish a memoir that would discuss how long she had worked for the agency.” The CIA said that while the dates of her employment have already been published in the Congressional Record, they “remain classified and may not be mentioned in ‘Fair Game,’ the memoir Ms. Wilson hopes to publish in October.” Wilson argues that “the agency’s refusal to allow her to include material already in the public domain…violates her right to free speech.” Wilson’s suit marks the second time in the past year that the CIA has objected to the publication of material “already in the public domain.” In Dec. 2006, Middle East analyst Flynt Leverett, who served under President Bush on the National Security Council, was blocked by the CIA from publishing an op-ed he wrote for the New York Times. Leverett explained in a subsequent op-ed that CIA officials said they “had concluded on their own that the original draft included no classified material, but that they had to bow to the White House.” The information to which the White House objected is freely available online from newspapers, think tanks, and government websites. He later said that the incident demonstrates “just how low people like Elliot Abrams at the NSC [National Security Council] will stoop to try and limit the dissemination of arguments critical of the administration’s policy.”

HUMAN RIGHTS — PENTAGON ‘MIGRATED’ SOVIET COLD WAR TORTURE TECHNIQUES TO GUANTANAMO, IRAQ: Survival, Evasion, Resistance, and Escape (SERE) is a program designed to train U.S. soldiers to withstand torture if they are ever captured as prisoners of war. Developed during the Cold War, U.S. solders are subjected to techniques based “on how the Soviet Union and its allies were believed to treat prisoners,” including “prolonged use of stress positions, exposure to heat and cold, sleep deprivation and even waterboarding.” A recently declassified investigation from the Department of Defense’s Inspector General confirms “how the military training was ‘reverse engineered‘ for use by American interrogators,” training them on more “effective” ways to elicit information. “On at least two occasions, the JTF-170 (interrogators) requested that Joint Personnel Recovery Agency (the agency conducting SERE training) instructors be sent to Guantanamo to instruct interrogators in SERE counterresistance interrogation techniques,” the report noted. Those practice also migrated to Iraq: “In September 2003…Joint Personnel Recovery Agency sent an interrogation assessment team to Iraq to provide advice and assistance to the task force interrogation mission.” Because the techniques were so extreme, several intelligence officers “vehemently objected to the use of the techniques, but their protests were ignored.” Sen. Carl Levin (D-MI) said he found the Pentagon report “very troubling” would hold hearings on how the SERE training methods “migrated” into Iraq and Guantanamo as the basis for interrogation. “They were put to a purpose that was never intended,” he said.


Conservative columnist Peggy Noonan declares today that President Bush “has torn the conservative coalition asunder,” with consequences “for the American future.” This White House “thinks its base is stupid,” she writes, while “conservative Bush supporters have felt like sufferers of battered wife syndrome.”

“Fort Lewis, which this month has suffered its worst losses of the war, will no longer conduct individual memorial ceremonies for soldiers killed in Iraq and Afghanistan. Instead, the post will hold one ceremony for all soldiers killed each month.” Fort Lewis’s commanding general wrote in a memo, “I am afraid that with the number of soldiers we now have in harm’s way, our losses will preclude us from continuing to do individual memorial ceremonies.”

Top U.S. commander Lt. Gen. Raymond Odierno “warned” yesterday that “he may not be able to make a full assessment of the situation in Iraq by September, as demanded by lawmakers.”

President Bush yesterday announced a “new international climate change framework,” setting “aspirational goals” for reducing carbon emissions but “no concrete targets or dates, no enforcement mechanism and no penalties for noncompliance. It also wouldn’t take effect until four years after Bush leaves office.” 

Exxon CEO Rex Tillerson on global warming: “There’s much we know and can agree on around the climate change issue, and there’s much that we just don’t believe we do know…and we want to have a debate about the things we know and understand, the things we know about that we don’t understand very well, and the things we don’t even know about around this very complex issue of climate science. So that will continue to be our position.”

“Gov. Bob Riley signed a resolution Thursday expressing ‘profound regret’ for Alabama’s role in slavery and apologizing for slavery’s wrongs and lingering effects. ‘Slavery was evil and is a part of American history,’ the Republican governor said.”

“The popular online dating service eHarmony was sued on Thursday for refusing to offer its services to gays, lesbians and bisexuals.” eHarmony was “founded in 2000 by evangelical Christian Dr. Neil Clark Warren” and “had strong early ties” with the religious right group Focus on the Family.

And finally: A press release from Sen. Wayne Allard (R-CO) yesterday calling for a “National First Responder Appreciation Day” included the following line, attributed to Allard: “I don’t think first responders have really done anything significant in comparison to their counterparts who have dealt with real natural disasters, I have no idea what else to say.” Allard’s spokesman “sent out a correction 23 minutes later that said, ‘Please pardon my typo in the first version of this release. I sincerely apologize for the error.'”

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“New Hampshire became the fourth state to legalize civil unions yesterday, as Gov. John Lynch (D) signed legislation into law saying it was in keeping with the state’s anti-discrimination tradition.”


MASSACHUSETTS: Gov. Deval Patrick (D) unveils a plan for free community college education by 2015.

SOUTH DAKOTA:  “South Dakota ranks last in the nation in state funding for K-12 education, paying out $2,805 per student.”

NEW HAMPSHIRE: State Senate rejects mandatory seat belt usage, maintaining New Hampshire’s status as the only state without such a law.

CIVIL RIGHTS: Four states have passed  laws refusing to comply with the Real ID Act, “casting further doubt on the future of the 2005 Real ID Act.”


THINK PROGRESS: Report: In meeting, “wild-eyed” President Bush thumped chest while repeating “I am the President!”

ESCHATON: In November, Iraqi Prime Minister Nuri al-Maliki predicted Iraqi forces would be ready to assume security command by June 2007. It’s now June 2007.

DAILY BACKGROUND: State Department orders website to remove photos of the proposed $592 million U.S. embassy in Iraq.

IRAQSLOGGER: U.S. embassy in Iraq being built with “coerced labor.”


“Bush administration officials, stung by complaints from Democratic Gov. Kathleen Sebelius that National Guard heavy equipment needed by tornado-stricken Greensburg, Kan., is in Iraq, are putting out word that she was two days late at the disaster scene because she was attending a jazz festival in New Orleans.”
— Chicago Sun Times, 5/27/07


Sebelius didn’t attend any of the jazz festival and left her family in New Orleans, flying back Saturday afternoon using a plane arranged by Louisiana Gov. Kathleen Blanco.”
— Wichita Eagle blog, 5/31/07

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