Pliable Precedents, Plausible Policies, and Lilly Ledbetter's Loss

Abstract

This article examines the U.S. Supreme Court's controversial Ledbet ter v. Goodyear decision in which the Court curtailed the statute of limita tions applicable to pay discrimination claims brought under Title VII of the Civil Rights Act of 1964. As argued herein, the different but plausible read ings of the Court's Title VII precedent in Justice Alito's five-Justice major ity employer-protective opinion and in Justice Ginsburg's employee protective dissent are reflections of a fundamental disagreement about the Court's proper role and function in the interpretation and application of Title VII (and, by extension, other employment discrimination statutes). The formalist, dichotomous, and classificatory approach of Justice Alito 's ma jority opinion did not examine or give any interpretive significance to that which was of critical importance to the dissenting Justice Ginsburg: recog nition of workplace realities and the contextual nuances of certain forms of pay discrimination. Because defensible viewpoints and plausible policy for mulations can be found on both sides of this analytical divide, the fact that and the way in which the Court split in its resolution of an important issue not answered in a clear, express provision of Title VII warrant scholarly examination. This is especially so given Congress' reaction to the Court's construction and application of Title VII in the legislature's enactment of the Lilly Ledbetter Fair Pay Act of 2009.