THE DISCRIMINATION HISTORY DEFENSE

Based upon the Supreme Court's decision in Ledbetter v. Goodyear, an employer that is currently practicing pay discrimination can defend against a victim's claim by proving that it had engaged in such discrimination for a long period of time. In other words, incredibly if an employer can demonstrate that it had a history of pay discrimination that was initiated and existed more than 180 days before the employee filed her claim, then the claim will be barred. I visualize this future courtroom scenario:

Plaintiff's Counsel: Your honor, the moment my client discovered that she was being discriminated against in respect to her pay, she immediately filed the appropriate claim and this lawsuit.

Defense Counsel: Your Honor, the Ledbetter decision provides an absolute defense to this action. My client has a long history of discrimination, and its credo is never to pay women, African-Americans or Hispanics what it pays to white males for the same work or position. Since the discrimination begins the day they are hired and we have employed the plaintiff and these other employees for years, although the disparity continues to this day, this complaint must be dismissed, because more than 180 days has elapsed since we started discriminating against her.

The Court: Counsel, in accordance with the Ledbetter case, since you have established that your client has had a long history of discrimination, the motion to dismiss will be granted.

The Court has concluded that the "unlawful employment practice" occurs when the salary is first fixed and that the required claim must be made within 180 days thereafter. Apparently this time line applies "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". (NYTimes 5/30/07) Putting aside the practical problems faced by an employee in attempting to learn about the pay disparity, and the hesitancy one might have to sue despite that knowledge, how can its continuance not be an "unlawful employment practice"?

Supporters of the opinion point out that it eliminates stale pay claims. But this decision does not deal with how far back the claim may go, but rather whether it reaches the threshold of allowing the claim at all. It is inconceivable to me that an employer can be shielded from a continuing pay discrimination claim solely on the grounds that the discrimination has been ongoing for a long time, but that is exactly what this decision holds. A history of discrimination constitutes a defense to a discrimination claim!