Sandra Day O’Connor is no longer a hero of mine.
Yes, she was the first woman on the bench. Yes, she was the swing vote who kept Roe v. Wade alive when the administration was hell-bent on killing it. Yes, she was getting on, her husband was sick, and she was ready to lead a different kind of life.
But how many awards does a woman who quit at a time when she was desperately needed really deserve? How many honors should you earn by walking out and making it possible for a new majority to turn back the clock on everything she and I and millions of women believe in and depend upon? Sure, Bush could have replaced her with a like-minded moderate, but did she really believe that would happen? Or care?
Tuesday’s decision by the United States Supreme Court denying relief to a woman in her 70s who had been blatantly discriminated against for more than 20 years is the price we are paying for O’Connor’s decision to put herself first.
I have no doubt what side Sandra Day O’Connor would have been on in the case. It should not have even been a hard case. The law prohibits discrimination against women in the terms and conditions of employment. It is well established that those prohibitions deny employers the right to pay men more than equally qualified women for the same work.
For 20 years, Lilly Ledbetter, the only woman among 16 managers at the Goodyear Tire plant in Gadsen, Ala., was paid less than all of the men, including those who had less seniority than she did.
But she didn’t know about it. People don’t advertise their pay. They don’t announce to you that they’re giving you the shaft.
The disparities kept growing. Every paycheck she got was less than it should have been. When she finally realized what had happened, she filed a complaint with the Equal Employment Opportunity Commission, which is the procedure required under Title VII before a plaintiff is free to file suit in federal court.
The agency has never taken the position that the rule that requires employees to complain within 180 days after the discrimination occurred requires a person to complain about a disparity they didn’t know about at the time, or else it gets cemented in stone forever, invulnerable from attack anytime in the future. Rather, the agency position is that if the paycheck you’re collecting is less than it should be because of discrimination, and you file within 180 days of collecting the paycheck, the fact that the discrimination started years ago and never ended does not bar your claim.
It may affect the amount of recovery, but not the right to bring a claim. Any other rule would mean that if you can keep a secret for 180 days, you can discriminate forever.
That’s the rule the five-man majority adopted yesterday. Forget about the doctrine of statutory construction that says agencies are entitled to deference in the interpretation of the law they are entrusted to enforce. Forget about the purpose of Title VII, which is to undo the effects of discrimination, not to mention the realities of the workplace, where the woman is usually the last to know that she’s been given the shaft.
This five-man majority’s novel definition of “conservative” is you ignore the law, ignore precedent, ignore realities and conserve the resources of the employer. Literally, the Court said that it saw the purpose of Title VII to be protection of employers against stale claims.
But what’s stale about a claim that every week, you get paid less because you’re a woman? The purpose of Title VII was to protect employees against discrimination, not to protect employers against legitimate claims.
Ruth Bader Ginsburg read her dissent aloud from the bench, an unusual move that signified the depth of her disagreement with the holding of the majority. No one in the world, literally, understands discrimination law better than Justice Ginsburg, who ran the Women’s Rights Project for the ACLU for many years, and herself argued many of the seminal cases in the court.
But Ginsburg was one vote short. O’Connor’s. And literally tens of thousands of women and minorities with claims pending that could now be thrown out will pay the price for that missing vote.
John Paul Stevens, my old boss, is older than Sandra Day O’Connor, and he has served longer on the Court. He too has a spouse who has reportedly faced her own health issues, a range of outside interests, and a loving family who would like to see more of him. Who could blame a man in his 80s for wanting some time to himself after 30 years of difficult and stressful work?
But Stevens is there every day, standing up for what he believes in. He’s my hero. Yesterday, he joined Justice Ginsburg’s dissent. Had Sandra Day O’Connor been there, it would have been a majority. I hope she’s enjoying her free time, not to mention all those tributes, because it’s costing women decades of progress.
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Susan Estrich is the Robert Kingsley Professor of Law and Political Science at the University of Southern California. She was Professor of Law at Harvard Law School and the first woman President of the Harvard Law Review. She is a columnist for Creators Syndicate and has written for USA Today and the Los Angeles Times.
Estrich's books include the just published “Soulless,” “The Case for Hillary Clinton,” “How to Get Into Law School,” “Sex & Power,” “Real Rape,” “Getting Away with Murder: How Politics Is Destroying the Criminal Justice System” and "Making the Case for Yourself: A Diet Book for Smart Women.”
She served as campaign manager for Michael Dukakis' presidential bid, becoming the first woman to head a U.S. presidential campaign. Estrich appears regularly on the FOX News Channel, in addition to writing the “Blue Streak” column for FOXNews.com.