On Friday, September 18, 2020, the legal community lost a guiding light. Throughout her entire career, Justice Ginsberg fought for the law to achieve its promise of equality and fairness. Nowhere was that more apparent than in her actions to combat gender discrimination. While still a practicing attorney, Ginsburg brought a nuanced and real-world view of gender relations that paved the way for the rights that all employees now expect in the workplace.
Justice Ginsburg’s dissent in the case of Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 643 (2007), demonstrates how she brought the reality of the workplace to the legal community. In that case, the conservative majority of the court found that a woman’s claim that she had persistently received less pay than her male counterparts for 20 years could was time barred. The court held that the plaintiff would have had to assert a claim after each paycheck to have had a valid claim, and her failure to do so precluded her from bringing a claim.
Justice Ginsburg wrote a forceful dissent, noting, “The realities of the workplace reveal why the discrimination with respect to compensation that Ledbetter suffered does not fit within the category of singular discrete acts ‘easy to identify.’” For example, Justice Ginsburg recognized that pay disparities often occur in “small increments” and that an employee will likely not have access to their counterparts’ compensation. Ginsburg foresaw that even where a woman receives a pay increase that is less than the raise given to her male counterparts, “the female employee is unlikely to discern at once that she has experienced an adverse employment decision.” Taking into account these “real-world characteristics of pay discrimination,” Justice Ginsburg argued that “the discrimination of which Ledbetter complained is not long past” and that “Goodyear continued to treat Ledbetter differently because of sex each pay period, with mounting harm.”
The dissent recognized how the majority’s result contradicted the intent of the anti-discrimination law, and concluded that “the ball is in Congress' court,” and urged the legislature “to correct this Court’s parsimonious reading of Title VII.”
As a result of Justice Ginsburg’s dissent, the first bill that President Obama signed into law was the Lily Ledbetter Fair Pay Act of 2009, which changed the law so that employees like Lily Ledbetter could then seek relief in court. While Justice Ginsburg’s dissent did not win the case, her argument won the day. We at Schwartz Perry & Heller celebrate Justice Ginsburg’s legacy and strive to build upon the protections and freedoms she helped secure.