Near the end of her career, Lilly Ledbetter received an anonymous note: she was being paid far less than every man doing the same job. Ledbetter was one of the first female supervisors at an Alabama Goodyear tire plant, working the 12-hour 7 p.m. to 7 a.m. overnight shift for nearly 20 years. A jury later determined that she had been subjected to sex-based discrimination and awarded Ledbetter more than $3 million for violations of the Civil Rights Act, but an appellate court overturned that ruling after finding her claims to have been brought too late. In a 5-4 decision, the Supreme Court affirmed, with Justice Ruth Bader Ginsburg writing one of the dissents that made her the face of dissent in American culture.
Most dissents share the same fate. They are born of sharp disagreement, they are issued without fanfare, and then they sit waiting for a new majority to take the bench. Some wait decades and some wait forever. Ginsburg’s dissent in 2007’s Ledbetter v. Goodyear Tire & Rubber Co., however, did something almost without precedent. It inspired Congress to act without hardly having to wait at all.
The woman behind the case
Lilly Ledbetter had gone to work after she and her decorated veteran husband were struggling to support their two children. Eventually, she wound up at a Goodyear Tire & Rubber Company plant in Gadsden, Alabama. She was a supervisor – one of the few women in management at the facility. And despite uneven raises, she received a “Top Performance Award” in 1996. What she didn’t know was that her male counterparts were being paid substantially more, even those with far less seniority. By the end, the male supervisors were being paid between $4,286 at the lowest and $5,236 at the highest per month; Ledbetter was earning only $3,727.
Goodyear had a policy prohibiting employees from discussing their pay, so Ledbetter only learned of the disparity after an anonymous note was slipped into her locker. After she brought a pay discrimination charge with the Equal Employment Opportunity Commission, Goodyear moved her to a position lifting heavy tires, which she understood as retaliation. She retired shortly after. Because her retirement benefits were calculated based on her discriminatory pay, as Ledbetter put it, it meant she would be a “second-class citizen for the rest of [her] life.”
She sued under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of sex. A jury found in Ledbetter’s favor and awarded her around $3.5 million in back pay and damages (eventually reduced to $360,000 based on statutory caps).
Goodyear appealed on the grounds that Title VII requires a plaintiff to file a charge of discrimination within 180 or 300 days of the unlawful employment practice, depending on the state. Ledbetter argued that every time she received the discriminatory pay, that clock reset, even if the initial discriminatory act of setting that pay had been outside of the 180 days. According to Ledbetter, the paychecks themselves were unlawful because they were a continuing effect of the initial discrimination. An appellate court disagreed, ruling that she could only sue over actual pay decisions that occurred less than 180 days before she filed her initial EEOC complaint. In the court’s view, she could not sue over pay decisions that happened prior to that, even if they affected her pay within that timeframe.
Ledbetter appealed to the Supreme Court.
A notorious dissent
Writing for a five-justice majority, Justice Samuel Alito ruled that Ledbetter’s arguments were squarely foreclosed by precedent: the clock started running when the discriminatory act occurs. Because the discriminatory act in her case was a pay-setting decision, and no other intentional discrimination occurred after that, the countdown began when that pay decision was first made – not when Ledbetter received each subsequent paycheck reflecting that decision. After going through the case law, Alito wrote that earlier cases spoke “to the point … directly.” The fact that such cases were in some ways different because they involved denials of promotions or hiring decisions was immaterial. In sum, if the employer made a discriminatory salary decision in 1992, that is when the violation happened – even if its effects echoed through paychecks for the next 15 years.
Ginsburg disagreed, and it’s hard to imagine her decision wasn’t informed by her own experience with sex-based discrimination. After graduating tied first in her class at Columbia Law School, Ginsburg had trouble finding a job until a professor threatened to withhold clerkship recommendations unless a district court judge at least agreed to interview her. She was later offered jobs at several law firms, but always at a lower salary than the men. She would go on to co-found the Women’s Rights Project at the American Civil Liberties Union, where she successfully argued several cases advocating for equality under the law before the Supreme Court.
In her first oral argument at the high court, Ginsburg famously quoted the abolitionist Sarah Grimké, saying, “I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.” Ginsburg believed that the point of equal protection was not that women were the same as men, or that they deserved a leg up, but instead that the government should treat people as individuals – making them “free to be you and me.”
After being appointed to the D.C. Court of Appeals, where she established a life-long friendship with then-judge Antonin Scalia, Ginsburg was elevated to the Supreme Court by President Bill Clinton as the second female justice. She would go on to author several iconic decisions, including 1996’s United States v. Virginia, which required the Virginia Military Institute to admit women (and in which Scalia alone dissented). But she also became an icon of dissent. While famous for her lace jabots and collars, she reserved a special collar for reading dissents from the bench in moments she considered genuine institutional failure. Her opinion in Bush v. Gore further cemented her as a colorful figure of dissent when she dropped the word “respectfully” in her sign off, which the justices traditionally used, instead saying only “I dissent.”
In Ledbetter, Ginsburg made a simple, human point about the realities of discrimination in the workplace – and pay discrimination in particular. In contrast to denials of a promotion, or firings, which are open events that invite explanation, pay discrimination is often invisible. It can accrue slowly over time. A woman may still be given a raise, but a smaller raise than her male counterparts. Salaries are confidential. And women like Ledbetter might be inclined to give their employer the benefit of the doubt, especially if they are pressured against “making waves.” Thus, a woman who is underpaid may have no reason to suspect it and no way to verify it until years later, when a note appears in her mailbox – or a colleague retires and mentions his pension. The majority, she said, “does not comprehend, or is indifferent to,” this “insidious way in which women can be victims of pay discrimination."
She also pointed to precedent suggesting that Title VII encompasses not just initial discrimination, but cumulative acts (like hostile work environment claims), and argued that while the majority had said that its decision was needed to protect employers from intentional discrimination long past, in her view, the discrimination occurred each time a person was paid differently based on sex. And while this would undoubtedly expose employers to more liability, there were plenty of bars preventing employees from successfully suing who actually knew about discrimination at the time but chose to pursue it only later.
In Ginsburg’s view, there was plenty of evidence that Ledbetter’s pay was a result of intentional discrimination: at one point, her pay fell below the minimum threshold for that position; the jury heard evidence that one of the men who evaluated her was openly biased against women; other women testified they had been paid less than the men they supervised; and the plant manager had made comments that the plant “did not need women, that [women] didn’t help it, [and] caused problems.” The majority’s rule, she said, effectively immunized exactly the kind of discrimination the Civil Rights Act was meant to cover. Congress had enacted Title VII to remedy workplace discrimination, she said, not to provide a technical escape hatch for employers who were good at keeping secrets, and the court should read the statute accordingly.
Ginsburg closed by speaking not to her colleagues, but to Congress, stating that “the ball is in Congress’ court.” In what became both an invitation and a prediction, she wrote, “The Legislature may act to correct this Court’s parsimonious reading of Title VII.”
An unusual ending
Ledbetter did not give up. Rather, she turned to Congress, meeting with leaders and speaking about her experience. According to her son Phillip, “This started out personal for her, but now she is standing up for other women including my sister Vickie and my 2-year-old daughter Grace.”
Just two years later, in 2009, Congress passed the Lilly Ledbetter Fair Pay Act of 2009 – the first piece of legislation signed by President Barack Obama. At the ceremony, the president said that by signing the act, “we are upholding one of this nation’s first principles: that we are all created equal and each deserve a chance to pursue our own version of happiness.” The law amended Title VII to provide that the limitations period resets with each discriminatory paycheck –precisely the rule Ginsburg had argued the statute should have required all along. The woman who had been denied her jury verdict now had a law named after her, and RBG kept a framed copy of the act in her chambers. It was nevertheless a symbolic win for Lily: she never recovered the money she had lost as a result of discriminatory pay.
When packing to go to the signing ceremony, Ledbetter said, “I’m just thrilled that this has finally passed and sends a message to the Supreme Court: You got it wrong.” But perhaps the bigger takeaway is a lesson about what dissents, at their best, are actually for. When the majority reaches a conclusion that other justices believe to be practically intolerable, they can make an argument about what the law ought to be. And it’s not merely catharsis, but a roadmap for actual change.
