Amicus Curiae Brief — Ledbetter v. Goodyear Tire & Rubber Co., Inc.

AO A =

(y) | OCT 23 2006

No. 05-1074

In the Supreme Court of the United States

LILLY M. LEDBETTER, PETITIONER

Vv.

GOODYEAR TIRE AND RUBBER COMPANY, INC.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

PAUL D. CLEMENT

Solicitor General

Counsel of Record

WAN J. KIM

Assistant Attorney General

GREGORY G. GARRE

Deputy Solicitor General

IRVING L. GORNSTEIN

Assistant to the Solicitor

General

DENNIS J. DIMSEY

DIRK C. PHILLIPS

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

cee eee

—_-_-_-

QUESTION PRESENTED

Whether or under what circumstances a plaintiff may

bring an action under Title VII of the Civil Rights Act of

1964, 42 U.S.C. 2000¢e et seq., alleging illegal pay discri-

mination when the allegedly disparate pay is received

during the statutory limitations period, but is the result

of intentionally discriminatory pay decisions that occur-

red outside the limitations period.

(1)

Statement

Summary of argument

TABLE OF CONTENTS

Argument:

Title VII requires a plaintiff alleging intentional pay

discrimination to establish an intentionally

discriminatory pay decision within the statutory

limitations period

A.

An employee may not circumvent Title VII's

limitations period by chailenging a paycheck on

the theory that it perpetuates the effects of

prior unchallenged pay decisions ................ 9

An employee may challenge the delivery of a

paycheck as an unlawful employment practice

when it is made pursuant to a facially

GRRTTEEATIOTY BOTT occ ccccccccccccecceccces 13

An employee may likewise challenge the

delivery of a paycheck as an unlawful

employment practice when it is made pursuant

to an employer’s ongoing intentionally

discriminatory pay structure .................. 14

Petitioner’s perpetuation theory creates an

anomalous distinction between pay claims and

other claims, most obviously denial of

ED och eles ce eesecucadae cause 19

Petitioner’s perpetuation theory thwarts the

achievement of the purposes of the limitations

DD cnkne cudusendekaeibhedoe ned astebwhss 20

Petitioner’s remaining arguments are

EE vb RG aS co venhucannndied d600scvees 22

1. Petitioner’s contention that a violation of

the Act occurs only when an employee

receives disparate pay is incorrect ........

(IIT)

Iv

TABLE OF CONTENTS—Continued: Page

2. Petitioner’s policy arguments do not

justify extending the limitations period for

challenges to disparate pay decisions ........ 23

3. Petitioner’s reliance on lower court

decisions, the EEOC’s guidance, and

Congress’s amendment for seniority

gyotemns is miaplaced .......ccscccccccccces 24

4. The law governing limitations periods

in other contexts does not support

PPC

G. The judgment of the court of appeals should be

GONE oc neces siccededcibvansseuseauonbenes 29

COIS oo ses wascedsecceccnciststcundéesuseeseeuent 30

TABLE OF AUTHORITIES

Cases:

Bay Area Laundry & Dry Cleaning Pension Trust

Fund v. Ferbar Corp. of Cal., Inc., 552 U.S. 192

GOED nkccccctadcce6ososedecetubiiearoeee 27

Bazemore v. Friday, 478 U.S. 385 (1986) .:... 5,7, 15, 16,

17, 18

Corning Glass Works v. Brennan, 417 U.S. 188 (1974) .. 26

Delaware State Coll. v. Ricks, 449 U.S. 250 (1980) .. 11, 12,

19, 20, 22, 23

Dasgupta v. University of Wis. Bd. of Regents, 121

Pd 19GE CHU CO. BOGE) occ ccccccvevecescescccees 25

Klehrv. A. O. Smith Corp., 521 U.S. 179 (1997) ........ 27

Local Lodge No. 1424, Int'l Ass’n of Machinists, 362

EE, GES GIRS oon caccnscecdesssssesdusccuueuaneas 28

Cases—Continued: Page

Lorance v. AT&T Techs., Inc., 490 U.S. 900 (1989)... 7, 11,

14, 15, 28

National R.R. Passenger Corp. v. Morgan, 536 US.

DT dct dceddcuddannigbebeteseednece ce passim

Shea v. Rice, 409 F.3d 448 (D.C. Cir. 2005) ......... 18, 25

United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977) 10, 22

Statutes:

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e

Dt hddduddbbtsckecteadbocccovoscecoeces passim

42 U.S.C. 2000e-2(a)(1) .............. 2, 8, 10, 19, 22

SITES occccccccvccecccccces 2, 6,8

ED eon crcoswneddedeséous 12

EEE ee 1

Equal Pay Act of 1963, 29 U.S.C. 206(d)(1) ............ 26

Fair Labor Standards Act of 1938, 29 U.S.C. 201

et seq.:

i iiddet tbe echeneeeoseseeeees 27

EE 27

Miscellaneous:

United States Equal Employment Opportunity

Comm'n, Compliance Manual (July 2005) .......... 25

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In the Supreme Court of the Gnited States

No. 05-1074

LILLY M. LEDBETTER, PETITIONER

v.

GOODYEAR TIRE AND RUBBER COMPANY, INC.

~_

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

This case presents the question whether or under what

circumstances a plaintiff may bring an action under Title

VII of the Civil Rights Act of 1964, 42 U.S.C. 20006 et seq.,

alleging illegal pay discrimination when the allegedly dispa-

rate pay is received during the statutory limitations period,

but is the result of intentionally discriminatory pay deci-

sions that occurred outside the limitations period. The

United States has a significant interest in the resolution of

that question. The Attorney General enforces Title VII

against public employers, and the Equal Employment Op-

portunity Commission (EEOC) enforces Title VII against

private employers. In addition, Title VII applies to the

federal government as an employer. See 42 U.S.C. 2000e-

16. The United States, as the principal enforcer of the civil

rights laws and the Nation’s largest employer, has a strong

interest in the proper enforcement of Title VII.

(1)

2

STATEMENT

1. Title VII makes it an “unlawful employment prac-

tice” for an employer “to discriminate against any individ-

ual with respect to his compensation * * * because of such

individual’s * * * sex.” 42 U.S.C. 2000e-2(a)(1). In general,

a Title VII plaintiff must file a charge with the EEOC

within 180 days “after the alleged unlawful practice oc-

curred.” 42 U.S.C. 2000e-5(e)(1). In States that have an

administrative agency with authority to remedy practices

prohibited by Title VII, a plaintiff who initially proceeds

before that agency must file a charge with the EEOC

within 300 days “after the alleged unlawful practice oc-

curred” or within 30 days of when the plaintiff received

notification that agency proceedings have been terminated,

whichever is earlier. /bid. The State in which this action

arose, Alabama, does not have such an agency. Pet. App.

15a. Accordingly, charges in that State are subject to the

180-day limitations period.

2. In February 1979, respondent Goodyear Tire and

Rubber Company hired petitioner Lilly Ledbetter to work

in its Gadsden, Alabama, tire plant. Pet. App. 5a. Peti-

tioner was classified as a “Supervisor,” a precursor to the

position later known as “Area Manager.” /bid. In the early

1980s, respondent established a system for awarding its

Gadsden plant managers annual merit pay raises. /d. at 4a.

Under that system, the Area Manager’s direct supervisor

recommended salary increases at the beginning of each

calendar year based primarily on an employee’s most re-

cent performance ranking. /bid.

The record contains little information on petitioner’s

performance ranking or her pay raises for the first 12 years

that she worked for respondent. Pet. App. 5a. The record

does contain such information for the years after that. In

3

1993, petitioner received a 5.28% raise based on a perfor-

mance ranking of third out of four Area Managers. /d. at

6a. In 1994, petitioner received a 5% raise based on a per-

formance ranking of last. /bid. In 1995, petitioner received

both an “individual performance award” and a “top perfor-

mance award,” resulting in a 7.85% raise. Jd. at 5a-Ga. The

record does not contain the performance ranking on which

that raise was based, but respondent’s compensation guide-

lines reserve such a dual award for employees who achieve

the highest level of performance. /d. at 6a. In 1996, peti-

tioner was not eligible for a raise because of the timing of

her previous raise, but she was ranked fifteenth out of the

16 Area Managers in the performance rankings on which

the 1996 raises were based. /bid.

At the end of 1996, petitioner’s supervisor did not pre-

pare an evaluation for petitioner because, based on her low

ranking from the previous year, she was going to be in-

cluded in the plant’s scheduled layoffs. Pet. App. 7a.

Rather than laying her off, however, respondent retained

petitioner at her existing salary to serve as a substitute for

Area Managers on extended leave. Jd. at 7a-8a. By the end

of 1997, petitioner was making 15% less than the lowest

paid male Area Manager and 40% less than the highest

~ paid male Area Manager. /d. at 8a.

At the urging of her supervisor, petitioner transferred

to a non-supervisory position in January 1998. Pet. App. 8a.

Petitioner’s performance ranking for the year before her

transfer was fifteenth out of 16 Area Managers. Jd. at 9a.

As a result, petitioner did not receive a raise in 1998. /bid.

In March 1998, petitioner filed a completed question-

naire with the EEOC, alleging that she was forced to trans-

fer to a non-supervisory position because of her sex and

that she had been subjected to discrimination in her new

department. Pet. App. 9a. In July 1998, petitioner filed a

4

formal charge with the EEOC, reiterating the claims in her

questionnaire and adding a claim that she had received less

pay than other Area Managers on the basis of her sex.

Ibid. In November 1998, petitioner accepted respondent’s

early retirement offer. /bid.

3. In November 1999, petitioner filed suit against re-

spondent in federal district court alleging, inter alia, that

throughout her 19-year career, respondent had given her

disparate pay on the basis of her sex, in violation of Title

VII and other provisions. Pet. App. 10a. After a jury trial,

the jury found that it was “more likely than not that [re-

spondent} paid [petitioner] an unequal salary because of her

sex.” Jd. at lla. The jury awarded petitioner $223,776 in

backpay, $4662-for mental anguish, and $3,285,979 in puni-

tive damages. /bid.

In post-trial proceedings, respondent sought judgment

as a matter of law, arguing that Title VII's 180-day limita-

tions period precluded petitioner from challenging the an-

nual merit raise decisions that occurred outside the 180-day

period and that there was insufficient evidence to support

a jury finding of intentional pay discrimination with respect

to the pay decision that occurred within that period. Pet.

App. lla. The district court denied respondent’s motion,

explaining only that the jury could have found that, but for

her sex, petitioner would have received the same pay

through November 1998 as an Area Manager who was paid

the same as petitioner when she began working for respon-

dent in 1979. Jd. at 12a. The district court granted respon-

dent’s alternative request for a remittitur, reducing the

jury’s award to $360,000. /d. at lla. Petitioner accepted

the remittitur and respondent appealed. /d. at 12a.

4. The court of appeals reversed. Pet. App. la-37a. The

court noted that the parties had assumed for purposes of

appeal that petitioner’s March 25, 1998, questionnaire was

5

a Title VII “charge” and that petitioner’s July 1998 charge

related back to that date. /d. at 15a. The court therefore

concluded that the relevant Title VII inquiry was whether

petitioner had established an unlawful employment practice

in the 180-day period before petitioner filed her question-

naire on March 25, 1998, ie., “whether [petitioner] made

out a claim for disparate treatment in pay based on conduct

occurring after September 26, 1997.” /bid.

Relying on this Court’s decision in National Railroad

Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the court

of appeals held that petitioner was required to identify a

discrete act or acts that occurred within the 180-day period,

and that she was barred from challenging discrete acts of

discrimination that had occurred before then. Pet. App.

16a-19a. The court held that there was at least one discrete

act that petitioner could challenge—respondent’s decision

to deny her a pay raise in February 1998. /d. at 19a.

The court rejected petitioner’s argument, based on

Bazemore v. Friday, 478 U.S. 385 (1986), that she could

challenge every one of the annual pay raise decisions in her

19-year career with respondent, on the theory that each one

of those decisions affected the paychecks she received

within the 180-day period. Pet. App. 20a-24a. The court

concluded that permitting such a claim to proceed would

make the timely-filing requirement “completely illusory,”

and contravene the central purposes of the timely-filing

requirement: to foster prompt resolution of claims, and

protect employers from having to defend againsi stale

claims. /d. at 23a.

The court then stated that “at least in cases in which the

employer has a system for periodically reviewing and re-

establishing employee pay, an employee seeking to estab-

lish that his or her pay level was unlawfully depressed may

look no further into the past than the last affirmative deci-

6

sion directly affecting the employee’s pay immediately pre-

ceding the start of the limitations period.” Pet. App. 24a.

Following that approach, the court allowed petitioner to

challenge only two pay raise decisions, the February 1998

pay decision and the last one that occurred before the 180-

day period began. /d. at 27a-28a. Examining those deci-

sions, the court concluded that no reasonable jury could

have found that either decision reflected an intent to dis-

criminate on the basis of sex. /d. at 31a-37a.

SUMMARY OF ARGUMENT

Under Title VII, an employee must file an EEOC

charge within 180 or 300 days of when the unlawful employ-

ment practice occurred depending on whether the alleged

practice occurred in a State that has its own agency regu-

lating such practices. 42 U.S.C. 2000e-5(e)(1). Each pay

decision is a discrete employment practice, and a discrete

employment practice occurs on the day that the decision is

made and communicated. Accordingly, an employee must

challenge a pay decision within 180 or 300 days of the day

that the particular pay decision was made and communi-

cated or lose the ability to recover for it under Title VII.

An employee may not challenge paychecks received

during the limitations period on the theory that they per-

petuate the effects of discriminatory annua) pay decisions

that occurred outside the limitations period. The Evans-

Ricks-Lorance line of decisions squarely forecloses that

perpetuation-of-past-discrimination theory. Under those

decisions, a plaintiff must identify an intentionally discrimi-

natory act within the limitations period, not a discrimina-

tory act outside the limitations period that has continuing

consequences within it. The Court’s most recent decision in

this area, National Railroad Passenger Corp. v. Morgan,

536 U.S. 101 (2002), confirms that understanding.

7

Nothing in Bazemore v. Friday, 478 U.S. 385 (1986),

compels a contrary result. Under that decision, a plaintiff

may challenge paychecks within the limitations period

when they are made pursuant to an ongoing intentionally

discriminatory pay policy. But that is because such pay-

ments are themselves intentionally discriminatory, not be-

cause they perpetuate prior unchallenged acts of discrimi-

nation. An intentionally discriminatory pay policy “dis-

criminates each time it is applied.” Lorance v. AT&T

Techs., Inc., 490 U.S. 900, 912 n.5 (1989). Petitioner’s effort

to extrapolate support for her perpetuation theory from

Bazemore cannot be squared with the language of

Bazemore, the cases preceding Bazemore, or the Court’s

subsequent precedents.

Apart from its lack of grounding in this Court’s deci-

sions, the perpetuation theory would create an anomalous

rule for pay decisions that has no textual anchor. The

terms of Title VII do not distinguish pay decisions from any

other kind of employment practice. Nor is there a func-

tional basis for drawing such a distinction. The denial of an

employee’s desired pay raise cannot be meaningfully distin-

guished from the denial of a promotion. In both cases, the

act can have long-term consequences for pay. Yet it is clear

that an employee could not challenge a paycheck on the

theory that it perpetuates the consequences of a promotion

decision that occurred outside the limitations period. There

is no basis for treating discrete pay decisions differently.

The perpetuation theory also contravenes the purposes

of Title VII’s limitations period. In particular, if accepted,

it would reduce the incentive for employees to raise claims

of discrimination promptly and require employers to liti-

gate pay decisions that occurred years ago. This case illus-

trates those effects. Petitioner worked for respondent for

approximately 19 years without challenging a single pay

8

decision. Yet, under petitioner’s theory, she was free to

challenge any pay decision made during that 19-year period

simply by alleging that it had present effects. Neither Title

VII, nor this Court’s decisions interpreting it, permit that

result. Because petitioner does not allege that the chal-

lenged pay was made pursuant to an intentionally discrimi-

natory pay policy, but instead argues only that her pay per-

petuated discrete intentional discriminatory pay decisions

outside the statute of limitations, the court of appeals prop-

erly held that her claim is time-barred.

ARGUMENT

TITLE VII REQUIRES A PLAINTIFF ALLEGING INTEN-

TIONAL PAY DISCRIMINATION TO ESTABLISH AN INTEN-

TIONALLY DISCRIMINATORY-PAY DECISION WITHIN THE

STATUTORY LIMITATIONS PERIOD

Title VII makes it an “unlawful employment practice”

for an employer “to discriminate against any individual with

respect to his compensation * * * because of such individ-

ual’s * * & sex.” 42 U.S.C. 2000e-2(a)(1). Depending on

whether a State has an administrative agency with author-

ity to remedy unlawful practices covered by Title VII, a

Title VII plaintiff4must file a-charge with the EEOC within

either 180 or 300 days “after the alleged unlawful employ-

ment practice occurred.” 42 U.S.C. 2000e-5(e)(1). Peti-

tioner contends that a Title VII plaintiff alleging discrimi-

nation in pay can satisfy that requirement by showing that

she received less pay than male employees in the same posi-

tion within the applicable 180-day or 300-day period, even

if the disparate pay is the result of discrete pay decisions

that occurred outside that period. Under petitioner’s the-

ory, Title VII establishes no limit on how many years into

the past a plaintiff may reach to find the pay raise decision

9

or decisions that caused her to receive less pay within the

applicable limitations period.

This case illustrates the boundlessness of petitioner’s

theory. Petitioner worked for respondent for 19 years, but

she did not file a charge of pay discrimination until the last

year of her employment. Yet, under petitioner’s theory, she

was free to challenge as intentionally discriminatory every

pay raise decision made during her 19-year career. As dis-

cussed below, neither Title VII nor the Court’s precedents

countenance that result. Under Title VII, an employee

must challenge a pay decision within 180 or 300 days of its

occurrence, and an employee may not circumvent that limi-

tations period by challenging a paycheck received many

years later on the theory that it perpetuates the effects of

an unchallenged pay decision that occurred outside the limi-

tations period.

A. An Employee May Not Circumvent Title VII’s Limitations

Period By Challenging A Paycheck On The Theory That It

Perpetuates The Effects Of Prior Unchallenged Pay Deci-

sions

1. In National Railroad Passenger Corp. v. Morgan,

536 U.S. 101, 110 (2002), the Court held that a “discrete” act

occurs “on the day that it ‘happened,’” and that a party

therefore must file an EEOC charge within 180 or 300 days

of that date or “lose the ability to recover for it.” The Court

identified as discrete acts refusals to hire, failures to pro-

mote, denials of transfers, and terminations. /d. at 114. In

contrast, the Court in Morgan held that “(a] hostile envi-

ronment claim is composed of a series of separate acts that

collectively constitute one ‘unlawful employment prac-

tice.’” Jd. at 117. The Court therefore held that a hostile

work environment claim is timely if the employee files a

10

charge “within 180 or 300 days of any act that is part of the

hostile work environment.” /d. at 118.

Like a refusal to hire, a failure to promote, or a termina-

tion, an annual pay raise decision is typically a discrete act,

not a series of separate acts that together constitute an

unlawful employment practice. Each time an employer

denies a pay raise or sets a pay raise lower because of a per-

son’s sex, it constitutes a discrete “unlawful employment

practice” because each such act “discriminate|s] against

[that] individual with respect to his compensation * * *

because of such individual’s * * * sex.” 42 U.S.C. 2000e-

2(a)(1). Accordingly, as is true of other discrete acts that

can have long term consequences with respect to pay or

other benefits, such as a refusal to hire, a failure to pro-

mote, or a termination, a person must file a charge chal-

lenging a discrete pay raise decision within 180 or 300 days

after the decision is made and communicated “or lose the

ability to recover for it.” Morgan, 536 U.S. at 110.

2. Petitioner seeks to circumvent that rule by claiming

(Br. 21) that the delivery of paychecks itself constitutes an

unlawful employment practice that occurred within the

applicable period because that act perpetuated the effects

of the past unchallenged pay raise decisions. That kind of

perpetuation-of-past-discrimination claim, however, is di-

rectly foreclosed by the “Evans-Ricks-Lorance” line of

precedents.

In United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977), ©

an employee failed to file a timely charge to her termina-

tion. /d. at 554-555. After she was rehired, the employer

used her rehiring date, rather than her original date of hire,

to determine her seniority. /d. at 555. The employee chal-

lenged that practice on the theory that it perpetuated the

effects of the discrimination that occurred when she was

terminated on the basis of her sex. /d. at 556. While ac-

11

knowledging that the use of her rehiring date to determine

her seniority would perpetuate a past act of allegedly un-

lawful intentional discrimination, the Court rejected the

employee’s claim. /d. at 557-558. The Court explained that

the critical inquiry under Title VII is not whether there are

continuing consequences of a past act, but whether “any

present violation exists.” Jd. at 558. Because the employee

had not alleged that the practice of using her rehiring date

to measure seniority was itself an intentionally discrimina-

tory act, she could not establish a violation of Title VII.

Ibid.

In Delaware State College v. Ricks, 449 U.S. 250 (1980),

the college denied Ricks tenure and issued him a one-year

contract after which his emplcyment with the college would

end. /d. at 252-253. Ricks failed to file a charge within 180

days of the denial of tenure, and instead filed a charge sev-

eral months before his contract expired. /d. at 254-255.

The Court rejected Ricks’s claim that he could wait to chal-

lenge the tenure decision as intentionally discriminatory

until it resulted in the loss of his job, explaining that “(t]he

‘proper focus is upon the time of the discriminatory acts,

not upon the time at which the consequences of the acts

became most painful.” /d. at 258 (citation omitted). The

Court also rejected Ricks’s argument that he could chal-

lenge the termination itself on the theory that it perpetu-

ated the effects of the past intentionally discriminatory

denial of tenure. /bid. The Court explained that, under

Evans, “(t]he emphasis is not upon the effects of earlier

employment decisions; rather, it is [upon] whether any

present violation exists.” /bid. (citation and internal quota-

tion marks omitted).

Likewise, in Lorance v. AT&T Technologies, Inc., 490

U.S. 900 (1989), female employees challenged a change in

the seniority system on the ground that it was intentionally

12

altered in order to protect incumbent males. They did not

do so, however, until more than three years after the

change was made. /d. at 905-906. The Court held that the

employees could not resurrect their untimely challenge by

claiming that an unlawful employment practice occurred

not only when the seniority system was changed, but also

each time its concrete effects were felt. Jd. at 906. Relying

on Evans and Ricks, the Court explained that a Title VII

plaintiff may not assert a claim “that is wholly dependent

on discriminatory conduct occurring well outside the period

of limitations.” Id. at 908.’

Evans, Ricks, and Lorance foreclose petitioner’s

perpetuation-of-past-discrimination theory. Under those

decisions,“[i]t is simply insufficient” for petitioner to allege

that the delivery of paychecks within the limitations period

is unlawful because it “gives present effect” to past discrim-

inatory pay raise decisions and therefore “perpetuates the

consequences of forbidden discrimination.” Ricks, 449 U.S.

at 258 (citation and internal quotation marks omitted). Nor

can petitioner escape the force of those decisions by de-

scribing the repeated distribution of paychecks as a “con-

tinuing violation.” Pet. Br. 16-17 & n.9. Under the E'vans-

Ricks-Lorance line of cases, the distribution of a paycheck

' In response to Lorance, Congress amended Title VII to provide

that an “unlawful employment practice occurs, with respect to a

seniority system that has been adopted for an intentionally disecrimina-

tory purpose * * * when the seniority system is adopted, when an

individual becomes subject to the seniority system, or when a person

aggrieved is injured by the application of the seniority system or

provision of the system.” 42 U.S.C. 2000e-5(e)(2). Congress did not

alter the timeliness requirement for any other employment practice.

Accordingly, while Lorance’s specific holding on when a discrimina-

torily adopted seniority system must be challenged has been super-

seded by statute, its analysis of Title VII’s timeliness requirement

remains authoritative for other practices.

13

that is allegedly deflated as a result of discrete pay deci-

sions that occurred outside the limitations is simply not a

violation of Title VII. A fortiori, the repeated distribution

of such paychecks cannot be a continuing violation.

B. An Employee May Challenge The Delivery Of A Paycheck

As An Unlawful Employment Practice When It Is Made

Pursuant To A Facially Discriminatory Policy

The fact that a paycheck that purportedly perpetuates

intentional discrimination outside the limitations period

does not satisfy the statute of limitations does not mean

that a paycheck may never do so. A paycheck that is dis-

seminated pursuant to a facially discriminatory pay policy

itself constitutes an act of intentional discrimination and

therefore is an “unlawful employment practice.”

For example, every reduced payment that a woman

receives pursuant to a policy that systematically requires a

woman to be paid less than a man because of her sex is a

separate act of intentional discrimination. That is true even

when the facially discriminatory policy originates outside

the limitations period. As long as the facially discrimina-

tory policy is operative within the limitations period and it

automatically requires a woman to receive less pay than a

man because of her sex, each payment pursuant to the pol-

icy represents an intentional act of discrimination, and the

victim of that policy may file a charge within 180 or 300

days of each such reduced paycheck.

There is a crucial difference, however, in the case of

challenges to pay decisions made pursuant to such a dis-

criminatory pay structure. Challenges to applications of a

facially discriminatory policy do not depend on the theory

that a practice is unlawful because it perpetuates a prior

unchallenged discrete act. Rather, such challenges depend

on the recognition that when a facially discriminatory policy

14

remains in effect, unlawful intentional discrimination is

presently occurring with the delivery of each paycheck pur-

suant to the policy. See Lorance, 490 U.S. at 912 n.5.

In Lorance, the Court recognized this important distinc-

tion and held that an employee could challenge a facially

discriminatory seniority system “at any time.” 490 U.S. at

911. The Court explained that “a facially discriminatory

system (e.g., one that assigns men twice the seniority that

women receive for the same amount of time served) by defi-

nition discriminates each time it is applied.” /d. at 912 n.5.

By contrast, with “a facially neutral system the discrimina-

tory act occurs only at the time of adoption, for each appli-

cation is nondiscriminatory (seniority accrues for men and

women on an identical basis).” /bid.

The same analysis applies to facially discriminatory pay

systems. A facially discriminatory pay policy (e.g., one that

requires women to be paid at three-quarters of the rate for

men in the same job category) “by definition discriminates

each time it is applied.” Lorance, 490 U.S. at 912 n.5. Be-

cause petitioner has not alleged, much less established, that

respondent has a facially discriminatory pay policy, that

theo ry of recovery is not available here.

Cc. An Employee May Likewise Challenge The Delivery Of A

Paycheck As An Unlawful Employment Practice When It

ls Made Pursuant To An Employer’s Ongoing Intentionally

Discriminatory Pay Structure

1. The same considerations that apply with respect to

paychecks issued under a facially discriminatory pay sys-

tem attach when an employer delivers the check pursuant

to an ongoing but unwritten intentionally discriminatory

pay structure. While they present different issues of proof,

there is no functional difference between a written policy

that requires all women to be paid at three-quarters of the

15

rate of men, and an unwritten policy that requires all

women to be paid at three-quarters of the rate that men are

paid. Like a facially discriminatory policy, such an ongoing

policy of intentionally paying women less than men because

of their sex “by definition discriminates each time it is ap-

plied.” Lorance, 490 U.S. at 912 n.5.

Bazemore v. Friday, 478 U.S. 385 (1986), illustrates

such an ongoing intentionally discriminatory pay structure.

In that case, an Extension Service had a pre-Title VII pol-

icy of maintaining racially segregated branches and paying

black employees less than white employees. /d. at 394.

After Title VII was enacted, the Service merged the

branches and eliminated some of the difference in pay be-

tween black and white employees. /d. at 394-395. But it

admittedly continued to intentionally pay its black employ-

ees less than its-white employees doing the same job be-

cause of their race. /bid. The court of appeals had con-

cluded that there was no violation of Title VII because the

policy of intentionally paying black employees less than

white employees had originated prior to the enactment of

Title VII. /d. at 395.

This Court found the court of appeals’ error “too obvi-

ous to warrant extended discussion: that the Extension

Service discriminated with respect to salaries prior to the

time it was covered by Title VII does not excuse perpetuat-

ing that discrimination after the Extension Service became

covered by Title VII.” 478 U.S. at 395. The Court ex-

plained that “[a] pattern or practice that would have consti-

tuted a violation of Title VII, but for the fact that the stat-

ute had not yet become effective, became a violation upon

Title VII's effective date, and to the extent an employer

continued to engage in that act or practice, it is liable under

that statute.” /bid. The Court added that when an em-

ployer continues to engage in such a policy of systematic

16

intentional discrimination, “{eJach week’s paycheck that

delivers less to a black than to a similarly situated white is

a wrong actionable under Title VII, regardless of the fact

that this pattern was begun prior to the effective date of

Title VII.” Jd. at 395-396.

The lesson of Bazemore is that when an employer has

an ongoing intentionally discriminatory pay structure, each

paycheck delivered pursuant to that policy is a discrete

wrong that may be separately challenged, regardless of

whether the intentionally discriminatory policy began be-

fore Title VII was enacted or more than 180 or 300 days

prior to the filing of a Title VII charge. Petitioner has not

alleged that she received paychecks pursuant to such an

ongoing intentionally discriminatory pay policy, and the

record does not support the conclusion that such a policy

existed. Instead, petitioner alleged only that she received

reduced pay within the limitations period as a result of a

series of discrete intentionally discriminatory pay raise

decisions, all but one of which occurred outside the limita-

tions period. Bazemore is therefore inapposite here.

2. Relying on the Court’s statement that “[ejach week’s

paycheck that delivers less to a black than to a similarly

situated white is a wrong actionable under Title VII,” 478

US. at 395, petitioner seeks to extrapolate from Bazemore

the far-reaching principle that an employer has an ongoing

affirmative duty to rectify any discrete discriminatory pay

decision, no matter how far in the past that discrete act

occurred, and that any paycheck that perpetuates the ef-

fects of such past discriminatory acts is itself a new act of

unlawful discrimination. Pet. Br. 21. For several reasons,

that reading of Bazemore is unsustainable.

First, the Court in Bazemore did not suggest that it was

breaking any new ground in the key passage of the opinion,

much less departing from Evans or Ricks. To the contrary,

17

the Court viewed the principle it was stating as “too obvious

to warrant extended discussion.” 478 U.S. at 395. There is

nothing “obvious” about the affirmative duty/perpetuation

principle that petitioner seeks to extrapolate from

Bazemore. To the contrary, if Bazemore had adopted that

principle, it would have constituted a wholly unprecedented

interpretation of Title VII, and would have been in substan-

tial tension with the Court’s prior decisions in Evans and

Ricks. Such a decision clearly would have warranted “ex-

tended discussion.” On the other hand, viewing Bazemore

as holding only that an employer may not continue an inten-

tionally discriminatory pay policy after Title VII was en-

acted simply because it began such a policy earlier is, as the

Court stated, “too obvious to warrant extended discussion.”

Ibid.

Second, while the Court described the Service as having

engaged in a practice of “perpetuating” discrimination, 478

US. at 395, it used that term to describe a practice of con-

tinuing a policy of intentionally discriminating on the basis

of race, not simply failing to undo the effects of past dis-

crimination. That is clear from the following key passage:

“{a] pattern or practice that would have constituted a viola-

tion of Title VII, but for the fact that the statute had not yet

become effective, became a violation upon Title VII's effec-

tive date, and to the extent an employer continued to en-

gage in that act or practice, it is liable under that statute.”

1bid. (emphasis added). The “pattern or practice” that

would have violated Title VII but for the fact that it had not

become effective was the pattern or practice of intentionally

paying black employees less than white employees because

of their race. Accordingly, when the Court referred to an

employee’s liability for the continuation of “that act or prac-

tice,” it necessarily meant continuation of the act or practice

of intentionally paying black employees less than white

18

employees because of their race, not the act or practice of

failing to undo the effects of prior discrimination.

Third, petitioner’s reading of Bazemore would force that

decision into conflict with the Court’s earlier holdings in

Evans and Ricks, and with its subsequent holding in

Lorance, that a Title VII plaintiff may not seek recovery

based on a theory that a practice is unlawful only because

it perpetuates the effects of past discrete acts of discrimina-

tion that were not timely challenged. See pp. 10-12, supra.

In contrast, limiting Bazemore to situations where an em-

ployer has an ongoing intentionally discriminatory pay

structure fits hand in glove with those decisions.

Indeed, the Court in Bazemore reconciled its decision

with Evans on precisely that basis. The Court explained

that in Evans, the plaintiff alleged that the practice of giv-

ing her rehiring date seniority “gave present effect” to the

past intentionally discriminatory act of terminating her

“and thereby perpetuated the consequences of forbidden

discrimination.” Bazemore, 478 U.S. at 396-397 n.6. By

contrast, the plaintiffs in Bazemore argued that “the pres-

ent salary structure” was itself a “discriminatory pay struc-

ture.” Jbid.* See Morgan, 536 U.S. at 112 (characterizing

Bazemore as a “pattern-or-practice case” where there was

an ongoing “discriminatory salary structure” that had be-

gun prior to enactment of Title VII); Shea v. Rice, 409 F.3d

448, 456-457 (D.C. Cir. 2005); id. at 456-457 (Williams, J.,

concurring) (explaining that the key to determining

whether a plaintiff may invoke Bazemore is whether she

has established a “discriminatory salary structure”).

Thus, Bazemore did not sanction a broad perpetuation

theory for pay cases. Nor did it adopt the far-reaching pay-

* Inits brief in Bazemore, the United States specifically argued that

the salary structure at issue “remained intentionally discriminatory.”

Br. for Fed. Pet’rs, at 20 n.18, Bazemore, supra (No. 85-93).

19

‘ check rule advanced by petitioner. Instead, it relied on a

limited and obvious principle that has no application here.

D. Petitioner’s Perpetuation Theory Creates An Anomalous

Distinction Between Pay Claims And Other Claims, Most

Obviously Denial Of Promotion Claims

Petitioner’s perpetuation theory not only has no footing

in this Court’s decisions, but it also would create a rule for

pay cases that is different from the rule that would apply to

any other kind of Title VII case. Indeed, petitioner no-

where suggests that her perpetuation theory would apply

to any employment practice other than pay. The text of

Title VII, however, draws no distinction between a chal-

lenge to a pay practice and a challenge to any other kind of

employment practice. See 42 U.S.C. 2000e-2(a)(1) (making

it an “unlawful employment practice” for an employer to

“fail or refuse to hire or to discharge any individual, or oth-

erwise to discriminate against any individual with respect

to his compensation, terms, conditions, or privileges of em-

ployment”). As petitioner notes, a pay decision can have

pay consequences years into the future. But so too can a

failure to hire, a failure to promote, a layoff, a denial of ten-

ure, and a termination. Yet, each of those is a discrete act

that must be challenged within 180 or 300 days of its occur-

rence or the plaintiff loses the right to challenge it. See

Morgan, 536 U.S. at 114-115; Ricks, 449 U.S. at 258.

A discrete pay decision, such as the denial of an annual

raise or a decision to set an employee’s annual raise at 2%

rather than 5% of her base salary, is particularly difficult to

distinguish in principle from a failure to promote. A promo-

tion is ordinarily, if not invariably, accompanied by a pay

increase, often a greater increase than would be available

for any in-grade adjustment of pay. Indeed, in many cases,

that is the principal reason that an employee desires the

20

promotion. When an employee fails to obtain the promotion

and the accompanying pay raise, that can have lasting con-

sequences on pay that are indistinguishable from the denial

of an annual pay raise. Yet, an employee cannot challenge

the delivery of a paycheck years later on the theory that the

reduced pay perpetuates the consequences of the prior dis-

criminatory failure to promote. Morgan, 536 US. at 114-

115. There is no apparent reason why Congress would have

wished to treat discrete in-grade pay decisions differently

from promotion or other decisions affecting benefits. And

there is nothing in the text of Title VII that would permit

such a distinction to be drawn.

E. Petitioner’s Perpetuation Theory Thwarts The Achieve-

ment Of The Purposes Of The Limitations Period

Petitioner’s perpetuation-of-past-discrimination theory

is also fundamentally at odds with the important purposes

of the limitations period. Title VII’s limitations period

serves two principal purposes. First, “[bly choosing what

are obviously quite short deadlines, Congress clearly in-

tended to encourage the prompt processing of all charges

of employment discrimination.” Morgan, 536 U.S. at 109

(citation omitted). Second, Congress sought to “protect

employers from the burden of defending claims arising

from employment decisions that are long past.” Ricks, 449

U.S. at 256-257.

Petitioner’s perpetuation theory undercuts both of those

purposes. By allowing an employee to challenge pay raise

decisions years later, petitioner’s theory removes a signifi-

cant part of the incentive for an employee to promptly chal-

lenge pay raise decisions that are thought to be discrimina-

tory. Furthermore, accepting petitioner’s theory would

-mean that a plaintiff could force an employer to defend a

series of pay decisions made by managers years ago. In-

21

deed, petitioner in this very case put respondent in the posi-

tion of having to defend pay decisions going back 19 years.

There is no evidence that Congress intended to impose such

an extraordinary and impractical record-keeping burden on

employers, much less with the burden of having to sift

through any evidence that may be available with respect to

pay decisions made years or even decades earlier in order

to adjudicate pay claims.

Petitioner contends (Br. 29) that employees retain an

incentive to file early in order to avoid the potential loss of

extra backpay, the loss of evidence to prove a case, and the

possibility of a laches defense. But none of those potential

incentives is a substitute for the clear guidance provided by

a statute of limitations. Indeed, it is particularly odd to

point to the possibility of a laches defense as a basis to avoid

the most natural reading of a statute of limitations. Nor

will any of the potential incentives eliminate an employee’s

ability to wait and see what happens over a number of years

with the prospect of-being able to challenge every single

pay decision whenever suit is brought. Indeed, petitioner

views it as a virtue of her proposal that employees will be

able to do just that. Br. 25-26. The crucial point, however,

is that regardless of the extent to which the factors cited by

petitioner afford an incentive to file early, they do not pro-

vide anything approaching the incentive that comes from

applying the usual rule that a plaintiff who fails to challenge

an employment practice within 180 or 300 days of its oecur-

rence forever loses the right to complain about that prac-

tice.

Petitioner also argues (Br. 28) that employers can ade-

quately protect themselves by saving their employment

records and by asserting a laches defense when a plaintiff

unreasonably delays and the delay prejudices the em-

ployer’s defense. But Title VII’s short limitations period is

22

intended to eliminate stale claims, not just ensure that em-

ployers will not be prejudiced in the their ability to defend

themselves against stale charges of discrimination. The

statute of limitations is intended to allow an employer to

regard a past act as having no further potential legal conse-

quence, Evans, 431 U.S. at 558, and to enable an employer

to ee the costs, burdens, and risks associated with litiga-

tion over that past act, including the burden of having to

litigate a fact-bound laches defense which may not lend

itself to disposition at the summary judgment stage, given

the intensely factual nature of a laches defense. Ricks, 449

U.S. at 256-267. Those purposes would be thwarted if peti-

tioner’s perpetuation theory were adopted.

F. Petitioner’s Remaining Arguments Are Unpersuasive

Petitioner raises a number of other arguments in sup-

port of her position. None is persuasive.

1. Petitioner’s contention that a violation of the Act oc-

-—eurs-enly when an employee receives disparate pay is

incorrect

Petitioner argues (Br. 22-23) that an intentionally dis-

criminatory pay decision is not an unlawful employment

practice when it first occurs because only the delivery of

unequal pay can constitute discrimination “with respect to

* * * compensation.” 42 U.S.C. 2000e-2(a)(1). That argu-

ment is without merit. When an employer denies a pay

raise or sets a pay raise at 2% rather 5% based on an indi-

vidual’s sex, that employer plainly discriminates “with re-

spect to * * * compensation.” /bid. An employee may not

experience the most acute effects of that unlawful employ-

ment practice until she receives unequal pay. But under

Title VII, a discrete unlawful employment practice occurs

when a discriminatory employment decision has been

“made and communicated,” not when the actual effects of

—

23

that discriminatory act are most concretely experienced.

Ricks, 449 U.S. at 258. That does not create any anomaly

when it comes to enforcement. If an employee has not re-

ceived any pay under the pay decision at issue, she may

seek an injunction against the unlawful practice, but simply

would not be entitled to backpay.

2. Petitioner's policy arguments do not justify extending

the limitations period for challenges to disparate pay

decisions

Petitioner argues (Br. 26-28) that application of the or-

dinary 180- or 300-day limitations period for discrete acts

would have an adverse effect in pay cases because employ-

ees will ordinarily have little reason to suspect discrimina-

tion within the applicable period. But there is no reason to

assume that employees will be less sensitive to pay deci-

sions than other decisions involving such matters as promo-

tions or benefits. Indeed, there is some reason to suspeet

that employees will be particularly vigilant concerning the

bottom line of take-home pay. Furthermore, if an employer

has actually discriminated in pay, other red flags may be

raised during the limitations period, whether it is a perfor-

mance ranking that does not accurately reflect the em-

ployee’s performance (Pet. Br. 5), unequal treatment in

assignments, on-the-job harassment, a supervisor’s threat

not to give a good performance rating unless the employee

submits to his sexual advances (ibid.), a supervisor’s state-

ment that it is easier to downgrade females than males (id.

at 6), or statements from other female employees that they

are experiencing discrimination (id. at 7-8).

Petitioner also worries (Br. 25-26) that employees may

refrain from challenging pay decisions immediately because

the impact of any one decision may seem minor in compari-

son to the cost of alienating the employer. But few employ-

24 \

ees are likely to regard the denial of a raise, or a 2% rather

than a 5% raise, as a trivial event. And there is no reason

to conclude that employees are incapable of appreciating

the possible long-term consequences of such a pay decision,

as opposed to other decisions that may have long-term con-

-sequences, like the denial of a promotion or benefits. More-

over, even if petitioner were correct in characterizing an in-

grade pay denial as relatively trivial, that is not obviously

a factor that counts in favor of more favorable treatment for

limitations purposes, than more dramatic action like a fail-

ure to promote.

In any event, the two concerns raised by petitioner are

not unique to pay cases. As for the first concern, an em-

ployee may see little hard evidence of discrimination when

an employer hires her for one job, but rejects her for an-

other higher-paying one, or when an employer fails to pro-

mote her at the first opportunity. As for the second con-

cern, many employees might conclude that challenging such

hiring and promotion decisions as acts of discrimination so

early in their tenure would not be worth the possible cost to

their careers. Yet Congress has concluded that those con-

cerns are outweighed by the desirability of encouraging

prompt resolution of discrimination complaints and of pro-

tecting employers from the burdens and disruptions of liti-

gation once 180 or 300 days have passed. That congressio-

nal judgment applies equally to pay cases.

3. Petitioner’s reliance on lower court decisions, the

EEOC’s guidance, and Congress’s amendment for se-

niority systems is misplaced

Petitioner contends (Br. 29-32) that the Court should

defer to the appellate courts that have adopted her perpetu-

ation theory for pay cases. But this Court of course does

not defer to the legal analysis of the lower courts, and that

25

is particularly true when, as here, a key step in the analysis

is the proper interpretation of one of this Court’s prece-

dents (7.e., Bazemore). The lower court decisions that sup-

port petitioner’s position turn on an improper reading of

Bazemore for the reasons discussed above.

In any event, some courts have correctly recognized

that an employee may not challenge the delivery of pay-

checks on the theory that they continue the effects of past

discrete pay decisions outside the limitations period and

that Bazemore is limited to challenges to ongoing discrimi-

natory pay structures. See, e.g., Shea v. Rice, 409 F.3d 448,

453-454 (D.C. Cir. 2005) (An employee may challenge “a

persistent discriminatory salary structure,” but may not

“attempt to breathe new life into discriminatory acts that

occurred outside the limitations period * * * by relying on

their lingering effects in the present.”); Dasgupta v. Uni-

versity of Wisconsin Bd. of Regents, 121 F.3d 1138, 1140

(7th Cir. 1997) (“[AJn untimely Title VII suit cannot be re-

vived by pointing to effects within the limitations period of

unlawful acts that occurred earlier,” because “[t}hat would

make employers pay compensation for violations that were

no longer actionable and would thus unravel the statute of

limitations.”)

Like the courts of appeals that have endorsed peti-

tioner’s theory, the EEOC’s support for that theory also

rests on a misreading of Bazemore. See United States

Equal Employment Opportunity Comm’n, Compliance

Manual, Section 2-IV.C & n.183 (July 2005). Accordingly,

it lacks persuasive force and is not entitled to deference.

Morgan, 536 U.S. at 110 n.6.

For the same reason, Congress’s enactment of legisla-

tion that altered the timely-filing requirement for seniority

systems, but not for other employment practices, does not

assist petitioner. As petitioner argues (Br. 38-39), that leg-

26

islation left Bazemore intact. But as discussed above,

Bazemore does not support petitioner’s perpetuation the-

ory. And just as the legislation left Bazemore intact, it also

left Evans and Ricks intact, and petitioner’s perpetuation

theory is inconsistent with those decisions. What was not

left intact, of course, was the prospective significance of the

Lorance decision, but beyond that the legislation left the

Court’s precedents untouched. Certainly, nothing in the

Senate Report cited by petitioner (Br. 39) can alter this

Court’s precedents.

4. The law governing limitations periods in other contexts

does not support petitioner’s claim

Finally, petitioner seeks to rely (Br. 34-38) on interpre-

tations of statutes of limitations in other contexts to support

her view that a new limitations period springs to life each

time an employee receives unequal pay as a result of prior

unchallenged acts of discrimination. But those examples

show only that when violations repeat themselves, each

violation triggers a new limitations period. That principle

is not applicable here because the distribution of unequal

pay that is the result of prior unchallenged pay decisions is

not a violation of Title VII.

a. As petitioner notes (Br. 34-35), under the Equal Pay

Act of 1963, each paycheck that delivers less pay to a fe-

male employee than a male employee performing the same

work is a separate violation of the Act, giving rise to a new

cause of action and a new limitations period. See Corning

Glass Works v. Brennan, 417 U.S. 188, 208 (1974). But that

is because the text of the Act explicitly defines the unlawful

employment practice as the employer's act of “paying

wages to employees * * * at arate less than the rate at

which he pays wages to employees of the opposite sex

* * * for equal work.” 29 U.S.C. 206(d)(1). Under the

27

terms of that statutory prohibition, each time the employer

“pay[s] wages” at a lower rate for the same work, there is

a violation of the Act, without regard to when the disparity

originated or whether such a payment is an act of inten-

tional discrimination. And since each such reduced pay-

ment constitutes a violation, each such payment triggers a

new limitations period.

By contrast, as already discussed, the payment of un-

equal wages that is the result of prior unchallenged pay

decisions is not a violation of Title VII. Under Title VII,

the occurrence of that payment therefore does not trigger

a new limitations period.”

b. Petitioner’s other recurring violation examples are

inapposite for the same reason. Under the Fair Labor

Standards Act of 1938, a violation occurs, and a new limita-

tions period therefore arises, each time an employer fails to

“pay” a minimum wage for the hours worked, 29 U.S.C.

206(a), and each time an employee fails to “receive| } [over-

time] compensation.” 29 U.S.C. 207(a)(1). Similarly, in the

case of an installment obligation, each time a payment that

is due is not made on time, it constitutes a breach of the

obligation. Accordingly, in such cases,“‘a new cause of ac-

tion,’ carrying its own limitations period, ‘arises from the

date each payment is missed.’” Bay Area Laundry & Dry

Cleaning Pension Trust Fund v. Ferbar Corp. of Califor-

nia, Inc., 522 U.S. 192, 208 (1997) (citation omitted). Like-

wise, because each sale that is made pursuant to an ongoing

agreement to fix prices is itself a violation of the antitrust

laws, each such sale starts a new statute of limitations. See

Klehr v. A. O. Smith Corp., 521 U.S. 179, 189 (1997).

* Petitioner originally brought an Equal Pay Act claim against

respondent, but that was “abandoned or dismissed” before trial and is

not before this Court. Pet. App. 10a n.7.

28

The difference between those cases and this one is that

the act that petitioner relies on to trigger the new limita-

tions period—the dissemination of a paycheck that alleg-

edly is infected by prior unchallenged pay decisions—is

itself not a violation of the statute at isss1e. Its occurrence

therefore cannot trigger a new limitations period.

ce. Petitioner also seeks to rely (Br. 36-37) on precedent

under the National Labor Relations Act. As discussed

above, differences among statutes limit the value of such

comparisons, but this Court’s interpretation of that Act

undermines rather than supports petitioner’s statute of

limitations argument. In Local Lodge No., 1424, Int'l Ass’n

of Machinists v. NLRB, 362 U.S. 411 (1960), an employer

and a union agreed to a clause in a collective bargaining

agreement that required employees to join the union within

45 days of the clause’s execution. Under NLRB prece-

dents, agreeing to the clause and applying the clause both

constituted an unfair labor practice. A complaint was is-

sued that was untimely as a challenge to the agreement, but

timely as a challenge to an application of the agreement.

The Court held that the challenge could not proceed be-

cause it would have the effect of “reviving a legally defunct

unfair labor practice.” /d. at 417. See Lorance, 490 U.S. at

910-912 (discussing Machinsts).

Petitioner’s Title VII theory shares the same defect.

Allowing petitioner to challenge the pay she received within

the limitations period based on the theory that it is the re-

sult of discrete pay raise decisions that occurred outside

the limitations period would effectively allow petitioner

to “reviv[e] a legally defunct” challenge to pay raise deci-

sions made more than a decade ago.

29

G. The Judgment Of The Court Of Appeals Should Be Affirmed

Although the court of appeals correctly held that peti-

tioner’s Title VII claim was time-barred, it left open the

possibility that an employer could reach outside the limita-

tions period back to “the last affirmative decision directly

affecting the employee’s pay immediately preceding the

start of the limitations period.” Pet. App. 24a. The Court

should rule out that possibility and make clear that an em-

ployee must point to a discrete act of discrimination within

the limitations period.

For the reasons discussed above, the principle that gov-

erns this case is that an employee may not seek to prove a

Title VII violation based on the theory that pay received

within the limitations period is the result of discrete pay

decisions that occurred outside the limitations period. It

makes no difference whether the discrete pay decision oc-

curred 20 years ago or is the last pay decision that occurred

before the commencement of the limitations period. Simi-

larly, it makes no difference whether the employer reevalu-

ates salary decisions periodically or gives increases where

no such reevaluation occurs. The court of appeals’ judg-

ment should therefore be affirmed on the ground that Title

VII does not authorize the kind of perpetuation-of-past-

discrimination claim that petitioner asserts.

30

CONCLUSION

The judgment of the court of appeals should be af-

firmed.

Respectfully submitted.

PauL D. CLEMENT

Solicitor General

WAN J. Kim

Assistant Attorney General

GREGORY G. GARRE

Deputy Solicitor General

IRVING L. GORNSTEIN

Assistant to the Solicitor

General |

DENNIS J. DIMSEY

Dirk C. PHILLIPS

Attorneys

OCTOBER 2006