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

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HOB m4 } oct 23 200

ie rae 2 OFFICE OF THE CLERK |

IN THE

Supreme Court of the United States

LILLY M. LEDBETTER,

Petitioner,

v

GOODYEAR TIRE AND RUBBER COMPANY, INC.,

Respondent.

On Writ oF CERTIORARI TO THE

Unitrep States Court OF APPEALS FOR THE ELEVENTH CIRCUIT

—

BriEF OF THE CHAMBER OF COMMERCE OF THE UNITED STATES OF

AMERICA AND THE NATIONAL FEDERATION OF INDEPENDENT BUSINESS

LEGAL FOUNDATION AS Amici CURIAE IN SUPPORT OF RESPONDENT

Rosin S. CONRAD NEAL D. MOLLEN

SHANE BRENNAN Counsel of Record

NATIONAL CHAMBER LITIGATION Carson H. SULLIVAN

CENTER, INC. PAUL, HASTINGS, JANOFSKY

1615 H Street, N.W. & WaLKER LLP

Washington, D.C. 20062 875 15th Street, N.W.

(202) 463-5337 Washington, D.C. 20005

(202) 551-1700

KAREN R. HARNED

ELIZABETH A. GAUDIO

NATIONAL FEDERATION

OF INDEPENDENT BUSINESS

LEGAL FOUNDATION f

1201 F Street, N.W., Suite 200

Washington, D.C. 20004

(800) 552-6342

Attorneys for Amici Curiae

The Chamber of Commerce of the United States of America and

National Federation of Independent Business Legal Foundation

i

TABLE OF CONTENTS

EE CHET PEER Sn devo sc ceccesicceccceseos

SUMMARY OF ARGUMENT ..................

SEE 0b Kb Os bb ccenesenecenssbceeaeeewes

I.

II.

All Title VII Claims Are Subject To The Act's

Express Charge-Filing Limitations Period ...

A. For Discrete Acts Of Discrimination,

The Title VII Charge-Filing Limitations

Period Commences When The

Challenged Employment Decision Is

Made, And Is Not Renewed Every Time

The Consequences Of That Decision Are

PU ED wv vcdvcesnceedceesees

B. Pay Decisions Are Discrete Acts .....

Categorizing Pay Claims As Discrete Acts

Fairly Accommodates Competing Societal

Interests, And Is Consistent With Bazemore

See @€ O'S € 82.6.4 C42 OOOO 682 Geaceeonwreaed 2 Oise 2 8 & 6 -@-e

A. It Is Both Fair And Appropriate To

Require Complainants To File Charges

Of Discrimination Promptly .........

1. Strict Adherence to Rules of

Limitation Guarantees Evenhanded

Administration of the Law .......

2. Strict Enforcement Of Title VII's Brief

Limitations Period Is Necessary

To Accommodate Employer and

BUNGEE one cisndvcncee.

10

11

12

12

14

Contents

Page

3. The Equitable Defense of Laches Is

Not An Adequate Substitute For

UIE CRONE ow esccdneencess 16

B. Petitioner Advances A Fundamental

Misreading Of Bazemore ............. 18

1. Bazemore applies only to facially

discriminatory systems perpetuated

within the limitation period ..... 18

2. The Bazemore exception to the

general rule doesnotapplyhere ... 21

C. Petitioner’s Attempt to Divorce Intent

From Adverse Action Is Fundamentally

At Odds With The Purpose of Title VII

And The Court's Prior Cases ........ 23

Ill. The EEOC’s Interpretation of Supreme Court

Precedent is Not Entitled to Deference

Because Parsing Cases Does Not Require

Special Agency Expertise ................ 25

IV. The Distinction Between “Pay” Cases On

The One Hand, And “Everything Else” On

The Other, Is An Illusion ................ 28

GIP on cdasbeccsnccasosecesauavucesus 30

**.

TABLE OF CITED AUTHORITIES

Page

Cases

Akins v. Federal Election Commission,

OUR BOG Fee GK, Ge. TERED nc cccccvccccccces 26

Albemarle Paper Co. v. Moody,

Ge es GS POPE ce etree ccccvccnsceces 17

American Pipe & Constr. Co. v. Utah,

EN go 64 es cp edckineshecceesers 4,12

Anderson v. Anheuser-Busch, Inc.,

65 F. Supp. 2d 218 (S.D.N.Y. 1999) ............ 17

Askins v. Imperial Reading Corp., _

420 F. Supp. 413 (W.D. Va. 1976) ............. 18

Bazemore v. Friday, |

EE 26 Pe una sd esse sigidenesed passim

Brown v. Continental Can Co.,

oe ee ee 17

Burlington Northern & Santa Fe Railway Co. v. White,

SB RTT TTS TTT Tee 5, 23, 27

Chardon v. Fernandez,

EEE TTT Te eee 2, 3, 8, 9, 14, 24

County of Washington v. Gunther,

SS | EE ene poner 22

Delaware State College v. Ricks,

Se SEE 6 ss scenes ines ecdenceneedd passim

iv

Cited Authorities

Page

Edens v. Goodyear Tire & Rubber Co.,

858 F.2d 198 (4th Cir. 1968) .......... ccc ences 25

EEOC v. Dresser Industries, Inc.,

668 F.2d 1199 (11th Cir. 1962) ................ 16

English v. Pabst Brewing Co.,

828 F.2d 1047 (4th Cir. 1987) ................. 11

Harris v. Ford Motor Co.,

487 F. Supp. 429 (W.D. Mo. 1980) ............. 17

Int'l Union, UAW, v. Johnson Controls, Inc.,

GP Uae TF GORGE 0 6.360 0cseivessesavanaseees 23

James v. Booz-Allen & Hamilton, Inc.,

SES F.3G S71 COT Cie. FID wos cnc vevcesceunws 29

Jeffries v. Chicago Transit Authority,

“oe fot, is e)| eee 16

Kavanagh v. Noble,

See Ws BOER 0 cc cceseeseeésetnean eee 13

Law v. Continental Airlines Corp. Inc.,

S00 F208 Tee GAA... Ce: BO ov vv uatecuccetees 21, 23

Ledbetter v. Goodyear Tire & Rubber Co.,

421 F.3d 1169 (11th Cir. 2005) ................ 7

Lorance v. AT&T Technologies, Inc.,

GPUS. Fae GRE own ces cczccevesnues 5, 9, 20, 21, 23

Los Angeles, Department of Water & Power v. Manhart,

RE fd, Peer 22

Vv

Cited Authorities

Matvia v. Bald Head Island Mgmt, Inc.,

259 F.3d 261 (4th Cir. 2001) .............

McLaughlin v. Richland Shoe Co.,

486 U.S. 128 (1988) ..........0ec cece eee

Mickelson v. New York Life Insurance Co.,

460 F.3d 1304 (10th Cir. 2006) ...........

Mitchell v. Jefferson County Bd. of Education,

936 F.2d 539 (11th Cir. 1991) ............

Mohasco Corp. v. Silver,

Se PN ......«--2020--2 000.

Myree v. Local 41, IBEW,

789 F. Supp. 597 (W.D.N.Y. 1992) ........

Nat'l R.R. Passenger Corp. v. Morgan,

536 U.S. 101 (2002) ...........ee cece ees

NLRB v. International Brotheriood

of Electrical Workers, Local 340,

re

Nunnally v. MacCausland,

Se DU GEE, BOOED ccccccccccceses

Occidental Life Ins. Co. v. EEOC,

432 U.S. 355 (1977)... 0. cece cece ee eu ees

Raytheon Co. v. Hernandez,

540 U.S. 44 (2003) ..........0 cece eevee.

Page

vi

Cited Authorities

Reese v. Ice Cream Specialties, Inc.,

347 F.3d 1007 (7th Cir. 2003) ...............

Reeves v. Sanderson Plumbing Prods., Inc.,

SPEED kc dvoceccceccdccessiaseds

Reno v. Bossier Parish School Bd.,

528 UsS. 320 (2000) ............0.000-. Sein

Shea v. Rice,

409 F.3d 448 (D.C. Cir. 2005) ...............

Smith v. City of Jackson,

De AER Dawe svvenesesesetaccunua

Springer v. Partners in Care,

17 F. Supp. 2d 133 (E.D.N.Y. 1998) ..........

St. Mary’s Honor Ctr. v. Hicks,

UI III oc ccccccsccseavcacscss

Stogner v. California,

SIR orn cn seueekiecdael

Tademe v. Saint Cloud State Univ.,

328 F.3d 982 (8th Cir. 2003) ............00-

Taylor v. Northeast Illinois Regional R.R. Corp.,

No. 01 C 6319, 2004 WL 635058 (N.D. III. 2004) .

Taylor v. Small,

350 F.3d 1286 (D.C. Cir. 2003) ..............

United Air Lines, Inc. v. Evans,

A SOUND oc nvuseneecanescutetas

Page

14

26

22

17

28

passim

vil

Cited Authorities

a Page

United States Postal Service Bd. of Governors v. Aikens,

SP PROUD co cccceccccvanccedées« 5, 23

United States v. Kubrick,

444 US. 111 (1979) ............... Rha Sees 13

Univ. of Great Falls v. NLRB, ;

278 F.3d 1335 (D.C. Cir. 2002) ....... 000.200. 26

Statutes ;

29 U.S.C. §§ 216(b), 255, 260 ...........eeeeeeee. 25

42US.C.§ 1983 EP aT ee ey ee ee a 2, 8, 24

42 U.S.C. § 2000e-5(e)(1) .... 22... cece eeeeeeee. 2, 6,27

ET SEEN 265 sbcdpcbckawasseuconenenbacten 24, 25

Bais Labor Standards Act ...........ccccccvecss 25

Title VII of the Civil Rights Act of 1964

(“Title VII" or “ Act”),

SOO, ecccccddccncstvccgees passim

Regulations

ED ices cddessbansacees so eseeeees 16, 28

34 Fed. Reg. 6551 (Feb. 13.1969) ................ 16, 28

Congressional Materials

137 Cong. Rec. S$15485

See haeieccpddinnnkaddebedavese sue 21

~ vill

Cited Authorities

Page

Other Authorities

Brief of Bazemore petitioners,

No. 85-93, 1986 WL 728395 (Jan. 10, 1986) ...... 19

EEOC Compliance Manual - 2000

PG MD 66d ec cccmtccsscscccccccccnsees 26

EEOC Compliance Manual - 2005

EE cc dah du cnn oe Gdneedes adeebenes 26

Employee Tenure Summary,

Sept. 8, 2006; U.S. Department of Labor,

Bureau of Labor Statistics News,

www.bls.gov/news.release/tenure.nr0.htm ... 15

1

INTERESTS OF AMICI CURIAE

1. The Chamber of Commerce of the United States of

America (the “Chamber”) is the world’s largest business

federation. It represents a membership of over three million

businesses and business organizations of every size and in

every industry sector and geographic region of the country.

The Chamber has been a voice for the business community

for more than ninety years. To fulfill this role, the Chamber

frequently files amicus curiae briefs in cases involving issues

of vital concern to the nation’s business community.'

2. The National Federation of Independent Business Legal

Foundation (“ NFIB Legal Foundation”), is a nonprofit, public

interest law firm established to be a voice for small business

in the nation’s courts and the legal resource for small business.

The NFIB Legal Foundation is the legal arm of the National

Federation of Independent Business (NFIB), which is the

nation’s leading small-business advocacy association, with

offices in Washington, D.C., and all 50 state capitals. Founded

in 1943 as a nonprofit, nonpartisan organization, NFIB’s

mission is to promote and protect the right of its members to

own, operate and grow their businesses.

3. This case involves the administration of Title VII of the

Civil Rights Act of 1964 (“Title VII” or “Act”), 42 U.S.C.

§ 2000e et seq., an act to which the vast majority of Chamber

and NFIB members are subject. Title VII's specific charge-filing

requirement, which operates as a statute of limitations, was

adopted in large measure to protect employers from the

burden of defending decisions made in the distant past.

Indeed, Congress selected for Title VII a particularly brief

period of limitation precisely because it recognized the special

need to put such workplace controversies to rest quickly.

4. Petitioner, however, seeks a rule that would effectively

eliminate any meaningful period of limitations in certain kinds

of pay discrimination claims, allowing an employee to wait

1. Petitioner and respondent have given consent to the filing of amicus

briefs. Both parties’ letters of consent are on file in the Office of the Clerk.

No party has authored this brief in whole or in part, and no party has

made a monetary contribution to the preparation or filing of this brief.

See S. Ct. R. 37.6.

2

years or even decades to challenge an allegedly discriminatory

decision so long as the economic consequences of that decision

have continued into the limitations period. Such a rule would

be irreconcilable with Congress’ design for the administration

of Title VII, and would subject the employers covered by the

Act to damages for entirely innocent decisions that have

- nonetheless become difficult or impossible to defend solely

because of the passage of time.

5. The Chamber, NFIB, and their members are particularly

well positioned to explain to the Court the practical

implications of such a rule. Because such a rule would impose

an unwarranted and excessive burden on employers, the

Chamber and NFIB urge this Court to reject it.

SUMMARY OF ARGUMENT

1. To be timely, an administrative charge of

discrimination under Title VII of the Civil Rights Act of 1964

must be filed with the appropriate agency within a relatively

brief period of time after the alleged unlawful employment

practice occurred. See 42 U.S.C. § 2000e-5(e)(1). Petitioner

concedes that “[i]f the unlawful employment practice in a

disparate pay case is the pay-setting decision (and only that

decision), then the violation occurs at the time of that decision

and the limitations period runs from that date.” Pet. br. at 18

(emphasis in original). Petitioner claims, however, that the

limitations period should run from the date on which the

consequences of the challenged decision becomes real to the

complainant, here when each paycheck reflecting allegedly

disparate compensation is issued.

This is not a question of first impression for the Court. In

fact, the Court has held on a number of occasions that in a

discrimination case, “the alleged illegal act [and thus the

alleged unlawful employment practice is] the . . . decision” to

discriminate.? Once “the operative decision [is] made — and

2. Chardon v. Fernandez, 454 U.S. 6, 8 (1982) (discrimination claims

under 42 U.S.C. § 1983); see also United Airlines, Inc. v. Evans, 431 U.S. 553,

554-58 (1977); Delaware State Coll. v. Ricks, 449 U.S. 250, 258 (1980) (“the

filing limitations period[] commenced at the time the tenure decision was

(Cont'd)

3

notice given,” the limitations period begins to run. Chardon,

454 US. at 8.

Most recently, in Nat'l R.R. Passenger Corp. v. Morgan, 536

U.S. 101 (2002), the Court confirmed that this rule of law

applies to all “discrete acts” of alleged discrimination, even .

when these discrete acts, taken together, form a pattern of

discrimination or continuing course of conduct. A “discrete

act,” the Court held, is marked by two distinguishing

characteristics: (a) they “are easy to identify”; and (b) “[e]ach

[such] incident. . . constitutes a separate actionable ‘unlawful

employment practice.’” 536 U.S. at 114.> And because each

discrete act is both easy to identify (it “happens” on a specific

date) and is separately actionable, the disappointed employee

is expected to file a charge of discrimination shortly after the

incident occurs. Id. at 114-15.

Like the promotion and other claims described in Morgan,

pay claims fit in the “discrete act” category. They “happen” at

once, on a specific date, not incrementally over an extended

period of time. Each compensation decision is independently

actionable. Petitioner's pay claim is governed by this general

rule of limitations.

2. Petitioner offers two reasons for a special rule

applicable only to compensation cases. First, she argues that

the time limit selected by Congress is too short in the pay

dispute context, primarily because would-be complainants are

less willing to “rock the boat” with respect to compensation

claims than they are with respect to “more serious” violations.

(Cont'd)

made and communicated”); Bazemore v. Friday, 478 U.S. 385, 396 n.6 (1986)

(where salary system maintained within the limitations period was a “ mere

continuation of the pre-1965 discriminatory pay structure, ... [employer

could not claim that it had] made all [of its] employment decisions in a

wholly nondiscriminatory way” within the period and thus limitations

period renewed with each paycheck) (emphasis added).

3. Conversely, hostile environment claims are cumulative in nature.

It is difficult or impossible for would-be complainants to determine whether

any particular incident of harassment is, by itself, actionable, and in most

cases, the course of conduct becomes actionable only after a number of

such incidents combine to create the hostile environment. Special accrual

rules apply to such claims. See Morgan, 536 U.S. at 115-17.

4

Pet. br. at 25-26. Additionally, petitioner notes that the rules

of limitation applied to all other discrete acts make it more

difficult for Title VII to fulfill its statutory purpose, which she

claims to be providing compensation to injured parties.

Congress, however, purposefully selected “quite

obviously short deadlines” for filing charges of discrimination

under Title VII* because it recognized that periods of limitation

“promote justice by preventing surprises through the revival

of claims that have been allowed to slumber until evidence

has been lost, memories have faded, and witnesses have

disappeared.”° Statutes of limitation always cut off the right to

seek compensation — that is their only purpose — but doing

so furthers another legislative goal comprehended in Title VII.

And while a charge of discrimination undoubtedly “rocks the

boat” at work for all concerned, whether it comes early or late,

the Court concluded in Ricks that this provides no basis for

modifying the limitations rule Congress prescribed.®

The rule urged by petitioner would punish innocent

employers, reward indolence or gamesmanship by

complainants, and would be irreconcilable with the

unambiguous intent of Congress, which intended that Title

VII claims be rapidly resolved. This case is a perfect example

of the machinations invited by the rule petitioner seeks.

Petitioner remained silent about her claim of discrimination

throughout her tenure with Goodyear and waited until she

had decided to retire before filing her charge. By the time the

matter went to trial, the manager she had accused of

discrimination had died of cancer, and the employer had been

authorized by federal law to dispose of the records it had once

maintained regarding the decisions she belatedly challenged.

This sort of delay — whether resulting from tactical considerations

or inattention — is antithetical to the manner in which

Congress envisioned Title VII claims would be administered.

4. Mohasco Corp. v. Silver, 447 U.S. 807, 825 (1980).

5. American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554 (1974).

6. Ricks, 449 US. at 256 (rejecting argument that, because a charge

might damage “ working relationships and divert attention from the proper

fulfillment of job responsibilities,” limitations period did not begin to run

when decision was made and made known to complainant).

5

Second, petitioner finds support for a special rule of

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

This Court has previously explained, however, that Bazemore’s

reach is limited to its facts: a facially discriminatory pay system,

operating into the limitations period. Such a de jure

discriminatory system renders every pay decision made —

and every paycheck issued — within the period an

independently actionable decision. An employer that

perpetuates such a facially discriminatory system cannot

defend a lawsuit by arguing that it had also engaged in that

conduct outside of the limitations period without complaint.’

Petitioner alleges no comparable facts. She claims that her

pay was depressed because certain individual Goodyear

managers falsified data and defied Goodyear’s policies and

procedures, primarily because she refused to date one of them.

As a result, petitioner claims, she was rated unfairly on her

performance evaluation; this poor evaluation, she claims, then

led to a pay increase that was smaller than she deserved.

Petitioner complains of discrete acts of discrimination, subject

to the general rule, not the sort of facially biased pay structure

that might justify application of the Bazemore rule.

3. In an attempt to identify the “alleged unlawful

employment” practice that triggers the limitations period,

petitioner suggests that a court must focus on the results of

the salary setting process, “not [on] the [employer's]

compensation decisions.” Pet. br. at 23 (emphasis in original).

A focus on results is not only contrary to the Court's prior

cases, however, but it effectively cleaves the substantive Title

VII claim from the intent requirement that is its essential

prerequisite. A violation of the Act requires the marriage of

two things: an intent to discriminate (i.e., a decision) and an

act of discrimination (i.e., an adverse employment action).*

7. See Lorance v. AT&T Tech., Inc., 490 U.S. 900, 912 n.5 (1989)

(superseded by statute on other grounds).

8. See United States Postal Service Bd. of Governors v. Aikens, 460 U.S.

711, 715 (1983) (critical factual inquiry inevery Title VII disparate treatment

case is “whether the defendant intentionally discriminated against the

plaintiff”) (emphasis added); see also Burlington N. & Santa Fe Ry. Co. v.

White, 126 S. Ct. 2405, 2411-12 (adverse employment action required for

discrimination claim).

6

Petitioner claims that the intent to discriminate and the adverse

consequences can be separated by years or even decades, and

that the individial possessing the biased intent need not be

(or even know) the individual who effects the adverse

employment action. That remarkable proposition cannot be

squared with the Court's prior cases. If intent is the sina qua

non of a disparate treatment claim, the “violation” that triggers

the limitation period must include it.

ARGUMENT

I. All Title VII Claims Are Subject To The Act’s Express

Charge-Filing Limitations Period

A. For Discrete Acts Of Discrimination, The Title VII

Charge-Filing Limitations Period Commences

When The Challenged Employment Decision Is

Made, And Is Not Renewed Every Time The

Consequences Of That Decision Are Made Palpable

Congress has specified that, in order to preserve a claim

of discrimination, an administrative charge of discrimination

“shall be filed within one hundred and eighty days [or 300 days,

depending on the jurisdiction] after the alleged unlawful

employment practice occurred. . . .” 42 U.S.C. § 2000e-5(e)(1)

(emphasis added). This requirement does not vary on its face

depending on the form of discrimination involved; whether

the employer is alleged to have discriminated in hiring or with

respect to promotions or terminations, the statute treats all

allegedly discriminatory decisions the same. In this sense, the

statutory language is unqualified and absolute.

“Determining the timeliness of [an] EEOC complaint, and

[an] ensuing lawsuit,” then, requires the court to “identify

precisely the ‘unlawful employment practice” of which the

charge complains and the date on which it “occurred.” Ricks,

449 U.S. at 257; Morgan, 536 U.S. at 110. The Court has

addressed this question on several occasions, and on each

occasion, it has held unambiguously that, with the exception

of hostile environment harassment claims, Title VII's

limitations period begins to run when the alleged

7

discriminatory decision is made and communicated, not when

the complainant feels the consequences of that decision.’

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

was employed as a flight attendant at United Air Lines. She

was forced to resign when she married, however, because the

airline had a rule against employing married female flight

attendants. 431 U.S. at 554.

The no-marriage rule was subsequently eliminated, and

Evans was rehired, but the airline refused to give her seniority

credit for the period during which she was prohibited from

working for the airline. Id. at 554-55. Evans sued, but she did

not seek back pay for the period during which she had been

compelled to stop working. Rather, she complained that her

then-current pay rate was unlawfully depressed by the

company’s prior discrimination. Id. at 557. Accordingly, she

sought compensation for the shortfall in each of the paychecks

she had received within the limitations period. Id.

The Court held, however, that Evans’ then-current,

ongoing economic disadvantage — the shortfall in each of her

paychecks — was merely a lingering consequence of a prior

statutory violation (i.e., a discriminatory decision combined

with an adverse employment action) occurring outside the

limitations period, and not a statutory violation itself. Evans’

claim, therefore, was time-barred. Id. at 558-59.

“United was entitled to treat that past act [i.e. Evan's

termination] as lawful after respondent failed to file a charge

of discrimination” within the statutorily prescribed period.

Id. at 558. Although Evans claimed that a current violation

existed because each paycheck she received was smaller than

the check she would have received had there been no

9. The Eleventh Circuit thought it at least possible that in the search

for an improperly motivated affirmative decision directly affecting pay a

complainant, “may reach outside the limitations period created with her

EEOC charge no further than the last such decision immediately preceding

the start of the limitations period.” Ledbetter v. Goodyear Tire & Rubber Co.,

421 F.3d 1169, 1177-78 (11th Cir. 2005). The Court noted however, that

“{w]e do not hold that an employee may reach back even that far; what we

hold is that she may reach back no further.” Jd. at 1178. Amici agree with

the result reached below, but disagree that any decision occurring outside

the limitations period may be challenged.

8

discrimination, the Court held that the violation occurred

when the events that caused the disparity happened, not when

the continuing consequences of those events became painful.

Id. Nearly every act of unlawful discrimination has an ongoing

financial impact, the Court reasoned, and a rule that treats

consequences rather than decisions as statutory violations

“would substitute a claim for seniority credit for almost every

claim which is barred by limitations.” Id. at 560. The timeliness

of a claim, the Court held, cannot depend on such easily

manipulated matters of pleading. Id.

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

was denied tenure by the college where he worked, but, as

was the college’s custom, he was given a one-year “terminal

contract.” 449 U.S. at 253. Ricks waited until the one-year

contract had ended before he filed his charge of discrimination.

Id. at 254.

The Court held that the delayed charge came too late.

Again, the Court held that the proper focus “is upon the time

of the discriminatory acts, not upon the time at which the

consequences of the acts became most painful. ... The

emphasis is not upon the effects of earlier employment

decisions; rather, it ‘is [upon] whether any present violation

exists.’” Id. at 258 (quoting Evans, 431 U.S. at 558) (emphasis

in original). The “discriminatory act,” the Court held, was the

decision to deny Ricks tenure, and “the filing limitations

period[] commenced at the time the tenure decision was made

and communicated to Ricks.” Id. at 258.

c. In Chardon v. Fernandez, 454 U.S. 6 (1981), two

employees were terminated by the Puerto Rican Department

of Education. Each was informed in advance of the date on

which the termination would be effected. 454 U.S. at 7-8. Well

after receiving the letters, but shortly after their actual

termination, both filed lawsuits under 42 U.S.C. § 1983. Id.

The Court held again that the limitations pericd begins

to run when the employer's decision is made and is

communicated, not when the plaintiff felt the decision’s pinch.

“The fact of termination,” the Court held, “is not an illegal

act.” Id. at 8. Rather, “the alleged illegal act [is] the. . .decision”

9

to terminate. Id. Once “the operative decision was made —

and notice given,” the limitations period began to run. Id.

d. Following Evans, Ricks, and Chardon, courts continued

to have difficulty distinguishing for timeliness purposes

between the discriminatory acts and their consequences. As a

result, a number of courts continued to apply a “continuing

violations” doctrine applied to out-dated claims that were

factually or contextually related to discriminatory decisions

made within the limitations period. Under this doctrine, a series

of independent but related promotion decisions, for example,

might have constituted a “continuing violation” so long as at

least one such decision was made within the period.

Although “[t]he continuing violations theory [had been]

contradicted” by the Court on a number of occasions, it did

not die easily. Most recently in Morgan, the Court again faced

a claim that a series of connected but separately actionable

employment decisions could constitute a “continuing

violation” and therefore extend the limitations period for an

indefinite period. Again, the Court “contradicted” the theory.

The Morgan Court focused on the statutory language that

requires charges to be filed promptly after the statutory

violation “occurs.” The Court divided the universe of statutory

violations into two distinct, mutually exclusive categories. The

first category is composed of what the Court called “[d]iscrete

acts such as termination, failure to promote, denial of transfer,

or refusal to hire. . . .” Morgan, 536 U.S. at 114. For each such

discrete act, the charging party must file a charge within the

requisite period or forever lose the opportunity to challenge

that decision. Id.

Discrete acts, the Court observed, are characterized by two

defining characteristics: (a) they “are easy to identify”; and

(b) “[e]ach [such] incident. . . constitutes a separate actionable

‘unlawful employment practice.’” Id. And because each

discrete act is both easy to identify — it “happens” ona specific

date — and is separately actionable, the complainant is

expected to file a charge of discrimination shortly after the

incident occurs. Id. at 114-15. This is true, the Court held, even

10. Lorance, 490 U.S. at 906 (“The continuing violation theory is

contradicted most clearly by two decisions, [Evans and Ricks]”).

10

if it the act is part of a series of separately actionable

discriminatory decisions that together form a pattern

extending into the limitations period. Id.

The Court distinguished this common category of

Title VII violations from the sui generis category of hostile

environment claims. The Court observed that, in a hostile

environment case, “[t]he ‘unlawful employment practice’ . . .

cannot be said to occur on any particular day. It occurs over a

series of days or perhaps years and, in direct contrast to discrete

acts, a single act of harassment may not be actionable on its

own.” Id. at 115. The statutory violation “is comprised of a

series of separate acts that collectively constitute one ‘unlawful

employment practice’ because the individual events forming

the violation are not separately actionable. For that reason,

the Court said, the “practice” “occurs” when the last of the

events transpires, and if one such event “occurs” within the

limitations period, the complainant can challenge the entire

chain of events, including those that occurred outside the

limitations period. Id. at 117.

B. Pay Decisions Are Discrete Acts

Pay claims fall into the Morgan “discrete acts” category

because they possess both of the diagnostic criteria for discrete

act treatment. First, pay decisions “happen” at once on a

specific date, not incrementally over an extended period of

time. In this case, for example, Goodyear decided petitioner's

starting salary on a specific day when she started work, and

thereafter decided on her annual salary increase at a specific

time each year. Petitioner does not allege that she was unaware

when these decisions were made."

11. Petitioner notes that the salaries of other employees are generally

kept confidential and suggests that this fact warrants an effectively

unlimited time for filing a charge of discrimination. As explained in the

text and infra at 7-10, the Court has previously and repeatedly held that

the limitations period begins to run when the challenged decision is made

and communicated, not when the complainant has amassed some specific

quantity of evidence suggesting discrimination; such a rule would be

unworkable and would lead to vastly differing treatment for

indistinguishable claims. In any event, petitioner in this case does not claim

to have been ignorant of the facts necessary to support a charge, and it

would be unnecessary and unwarranted for the Court to reach out to decide

(Cont'd)

a

Second, each compensation decision is independently

actionable. Unlike a harassment claim, which may be

comprised of a series of jokes or uncivil comments made over

time, none of which would independently be a violation of

Title VIL, one incident of pay discrimination is invariably

“actionable on its own.” Morgan, 536 U.S. at 115. Because

petitioner was entitled to file a charge with respect to each

discrete pay decision she believed to have been discriminatory,

she was obligated to do so. She was not entitled to wait until

she had decided to retire and then attempt to reach back to

challenge decisions made much earlier.

II. Categorizing Pay Claims As Discrete Acts Fairly

Accommodates Competing Societal Interests, And Is

Consistent With Bazemore

Petitioner claims that, for two reasons, a different rule of

limitations should apply to what she calls “disparate pay

claims” than is routinely applied to every other form of non-

harassment employment discrimination claim under Title VII.

First, petitioner laments the “unfairness” that would result if

the commonly understood rule of limitations is applied here:

compensation discrepancies are said to be too small to “be

worth fighting over,” Pet. br. at 14; the limitations period

selected by Congiess — “a few short months” — is said to be

too short, id.; and employees are hypothesized to be more

reluctant in the pay context to “rock the boat” by filing a charge

than they are with respect to “more serious” violations.

Pet. br. at 25-26. The many errors in this argument are

explained in Section A below.

(Cont'd)

whether or in what circumstances equitable tolling or the application of

estoppel might be appropriate. The lower courts have proven themselves

to be capable of developing the law on these equitable doctrines on a case-

by-case basis. See, e.g., Nunnally v. MacCausland, 996 F.2d 1, 4 (ist Cir. 1993)

(“relief from limitations periods through equitable tolling ... remains

subject to careful case-by-case scrutiny.”); English v. Pabst Brewing Co., 828

F.2d 1047, 1049 (4th Cir. 1987) (equitable tolling may apply “ when defendant

has wrongfully deceived or misled the plaintiff in order to conceal the

existence of a cause of action” and equitable estoppel may apply when,

“despite the plaintiff's knowledge of the facts, the defendant engages in

intentional misconduct to cause the plaintiff to miss the filing deadline.”).

12

Second, petitioner reads the Court's decision in Bazemore

v. Friday, 478 U.S. 385 (1986), as permitting complainants in

pay cases to wait years or even decades before filing a charge

of discrimination. As explained in Section B below, Bazemore’s

holding is far more limited than petitioner suggests, and, in

fact, that decision is irreconcilable with the application of a

~ special continuing violations rule in this case.

A. It Is Both Fair And Appropriate To Require

Complainants To File Charges Of Discrimination

Promptly .

1. Strict Adherence to Rules of Limitation

Guarantees Evenhanded Administration of the

Law

Petitioner claims that a rule permitting an employee to

challenge a salary-setting decision years after it is made —

indeed, after the complainant's career is over and she has

decided to retire, as petitioner did here — would fulfill the

_ purpose of Title VII which, she says, is to make whole victims

of discrimination. Pet. br. at 24. To be sure, Title VII's aim to

make victims whole is one of the Act's important purposes,

but like all major pieces of legislation, Title VII represents the

accommodation of competing values and it is a mistake to

view it in monolithic terms.

If compensation had been Congress’ only interest in

passing Title VIL, it could have enacted the statute petitioner

envisions, i.c., one that had no meaningful period of limitations

and left employers to their common law defenses such as

laches. Doing so would certainly have made it possible to

“make [more] persons whole.” Pet. br. at 24. Congress made a

different choice, however. After substantial debate, Congress

- consciously selected “quite obviously short deadlines” for

filing charges of discrimination under Title VII. Mohasco, 447

U.S. at 825. It did so because it recognized that periods of

limitations “ promote justice by preventing surprises through

the revival of claims that have been allowed to slumber until

evidence has been lost, memories have faded, and witnesses

have disappeared.” American Pipe, 414 U.S. at 554. A period of

13

limitation, then, represents a balance between competing

interests: it

“afford[s] plaintiffs what the legislature deems a

reasonable time to present their claims, [while

simultaneously] protect[ing] defendants and the

courts from having to deal with cases in which the

search for truth may be seriously impaired by the loss

of evidence, whether by death or disappearance of

witnesses, fading memories, disappearance of

documents, or otherwise.”

United States v. Kubrick, 444 US. 111, 117 (1979).

And so in Morgan, the Court reiterated that “strict

adherence [to statutes of limitations] is the best guarantee of

evenhanded administration of the law.” Morgan, 536 U.S. at

108 (quoting Mohasco, 447 U.S. at 826); see also Kavanagh v. Noble,

332 U.S. 535, 539 (1947) (“Such periods are established to cut

off rights, justifiable or not, that might otherwise be asserted

and they must be strictly adhered to by the judiciary... .

Remedies for resulting inequities are to be provided by

Congress, not the courts.”) (internal citation omitted).

Petitioner argues that the “few short months”” Pet. br. at

14, selected by Congress as the appropriate limitations period

is too short. In fact, the brief period of limitations selected by

Congress serves compelling public interests, as explained infra

at 13, but more importantly, it was Congress’ choice to make.

Petitioner’s complaint is better addressed to the legislature.

Similarly, petitioner argues that employees are unwilling

to “rock the boat” by filing a charge, and therefore should be

given special dispensation (although only in pay cases) for

filing charges long after the operative decisions have

been made and announced. The Court rejected almost

precisely this argument in Ricks. There, the plaintiff had

argued that requiring a timely charge would damage

“working relationships and divert attention from the proper

fulfillment of job responsibilities,” and yet the Court enforced

the statutorily prescribed limitations period. Ricks, 449 U.S. at

256. A reluctance to “rock the boat” — or even a genuine fear

12. The period is actually either six or ten months, approximately,

depending on the jurisdiction.

~

14

of retaliation — will not excuse a complainant's failure to

utilize the Act’s procedures. See, e.g., Matvia v. Bald Head Island

Mgmt., Inc., 259 F.3d 261, 270 (4th Cir. 2001) (“The bringing of

a retaliation claim [], rather than failing to report . .. is the

proper method for dealing with retaliatory acts.”).

Finally, petitioner argues that a would-be complainant

should not be punished for giving the employer the “benefit

of the doubt,” or the time necessary to see the error of its ways

and do-the-right-thing. Pet. br. at 14. Again, this contention is

answered by Ricks. There, the plaintiff had filed a grievance

and hoped that, through this process, the college would reverse

its decision. The possibility that the employer could

conceivably “un-do” a decision, however, does not alter the

date on which the decision was made, and, as the Court has

repeatedly held, once “the operative decision [has been] made

— and notice given,” the limitations period begins to run.

Chardon, 454 U.S. at 8; see also Ricks, 449 U.S. at 261 (“limitations

periods normally commence when the employer's decision is

made.”).

2. Strict Enforcement Of Title VII's Brief

Limitations Period Is Necessary To

Accommodate Employer and Employee Rights

The interest in repose is particularly compelling in the

employment setting. To defeat a claim of discrimination, an

employer must be able to articulate its rationale for the

challenged decision, and to do so convincingly. The plaintiff

attempts to show at trial that the rationale proffered by the

employer is merely a pretext for discrimination, and the jury

must decide whom to believe. See Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 142 (2000); St. Mary’s Honor Ctr. v.

Hicks., 509 U.S. 502, 506-07, 513-14 (1993). In most instances,

the testimony devolves to a “he said/she said” battle of

recollections; the most vivid rendition of events often prevails.

But an employer's ability to tell its story dissipates sharply

as time passes. Memories fade; managers quit, retire or die,

business units are reorganized, disassembled, or sold; tasks

are centralized, dispersed, or abandoned altogether. Unless

an employer receives prompt notice that it will be called upon

to defend a specific decision or describe a series of events, it

15

will have no “opportunity to gather and pveserve the evidence

with which to sustain [itself]... .” Occidental Life Ins. Co. v.

EEOC, 432 U.S. 355, 372 (1977) (quoting Congressman

Erlenborn, 117 Cong. Rec. 31972 (1971)).

This problem is becoming ever more acute for

employers, exacerbated by trends in employee mobility,

mergers, acquisitions, reductions-in-force, divestitures and

reorganizations. The likelihood that all of the decision-makers,

witnesses, and human resources representatives an employer

needs to tell its story convincingly will still be working for the

defendant-employer at the time of a trial dwindles as the

challenged decision recedes into the past. The American

workforce currently has a median job tenure of only four

years.’ This number is substantially lower (2.9) for workers

between ages 25 and 30, and is lower still (1.3) for workers in

their early twenties. Id. It also varies by job category. For

example, employees in “administrative and support services”

and “accommodrtion and food services” have median tenures

of only 1.9 and !.6 years respectively. Id. Thus when an

employee of even moderate tenure delays in bringing a claim,

the employer is unlikely to have the necessary witnesses at its

disposal to defend itself.

Petitioner assures the Court that, “in reality, [true

prejudice to the employer will be] rare in disparate pay cases

[because] employers document the basis of pay decisions and

retain those records for years.” Pet. br. at 28. The suggestion is

misguided for four reasons. First, in practice, employers rarely

record detailed explanations as to why one employee might

have received an incrementally lower or higher pay increase

than his or her co-worker. Second, even if this kind of

documentation existed, few defendants would be likely to

prevail at a trial — even when the challenged decision was

entirely bias-free — by meeting the live, detailed, and often

tear-stained testimony of the plaintiff with a few words

recorded on a document.

Third, the Equal Employment Opportunity Commission

~ 13. See Employee Tenure Summary, Sept. 8, 2006; U.S. Department

of Labor, Bureau of Labor Statistics News, www.bls.gov/news.release/

tenure.nrO0.htm (last viewed on 10/23/06).

16

(“EEOC”) requires that employers keep only certain specified

employment records (including those relating to “rates of pay

or other terms of compensation”), and then only requires that

the records be kept for one year. See 29 C.F.R. § 1602.14. The

agency selected one year as the appropriate period “so that

there [would be] no possibility that an employer or labor

organization [would] have legally destroyed its employment

records before being notified that a charge [had] been filed.”

54 Fed. Reg. 6551 (Feb. 13, 1989) (emphasis added)." If

petitioner prevails here, employers would be obligated to keep

these records, not for one year, but in perpetuity.

Finally, petitioner's suggestion that an employer can avoid

material prejudice merely by improving its record retention

program is undermined by the facts of this case. Petitioner

claims that she was denied the compensation she vas owed

because she refused to go out on a date with her then-

supervisor, Mike Maudsley. Pet. br. at 5-6. But it is unlikely

that Goodyear keeps any records that might be relevant to

this sort of allegation, and Mr. Maudsley was unavailable

either to admit or deny petitioner's allegations; he had died of

cancer by the time the case went to trial.

3. The Equitable Defense of Laches Is Not An

Adequate Substitute For Congress’ Design

Congress intended timeliness questions under Title VII

to be analyzed as they are with most causes of action: an

express limitations period sets the time available to a

complainant for filing, and the courts retain the equitable-

authority to ameliorate the operation of that limitation in

particular cases where exceptional facts justify deviation

from the general rule. See Morgan, 536 U.S. at 113-14. Petitioner

seeks to turn this statutory scheme upside down. In her view,

complainants in salary-setting cases should generally be

—

14. See also EEOC v. Dresser Indus., Inc., 668 F.2d 1199, 1204 (11th Cir.

1982) (“Once defendants satisfy the EEOC’s record retention requirement

in Title VII enforcement actions, they should not be punished for failing to

exceed standards mandated by the very Commission that promulgated

them.”); see also Jeffries v. Chicago Transit Authority, 770 F.2d 676, 681 (7th

Cir. 1985) (“We do not read [29 C.F.R § 1602.14] to require the [company]

to maintain records indefinately [sic].”).

17

excused from an obligation to file charges promptly, and the

employer's hopes should rest with the laches defense. ;

Not only would that suggestion do violence to Congress’

evident design for administration of the Act, it would

effectively prevent employers from mounting a vigorous

defense to even the most baseless claims. The laches defense

is only available under “the most unusual circumstances,” and

poses a “particularly difficult [standard for employers] to

establish.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 440 (1975)

(Marshall, J. concurring). For this reason, laches is not an

adequate substitute for a period of limitations; as the Court

has recently recognized, statutes of limitation exist for the very

purpose of creating “a presumption [of prejudice from the

passage of time] which renders proof [of prejudice]

unnecessary.” Stogner v. California, 539 U.S. 607, 616 (2003),

(quoting with approval Wood v. Carpenter, 101 U.S. 135, 139

(1879)).

That presumption is necessary because, in the great run

of cases, significant delay will almost always result in prejudice

that is nonetheless unprovable. Even when all of the relevant

witnesses are alive and can be located, they may also be

unavailable or unhelpful — relocated, disinclined to volunteer

to help a former employer, or simply unable to recall the events

at issue. In these circumstances, the employer will typically

be unable to make the particularized showing of prejudice

courts often require.’* No one can doubt that the memories of

15. For example, it might be sufficient in some cases to show

that a key witness has died, but in others it might not. See, e.g., Springer v.

Partners i: Care, 17 F. Supp. 2d 133, 139 (E.D.N.Y. 1998) (denying defendant's

laches defense even though defendant “no longer possess[ed] documentation

relating to plaintiff or his employment” and no longer employed “any

individuals who possess personal knowledge of plaintiff's claims.”); Myree v.

Local 41, IBEW, 789 F. Supp. 597, 616 (W.D.N.Y. 1992) (finding that laches did

not bar plaintiff's recovery, even though several individuals involved in events

relevant to the lawsuit, who “might have been key witnesses for the defense,”

were dead); Harris v. Ford Motor Co., 487 F. Supp. 429, 432 (W.D. Mo. 1980)

(denying defendant's laches defense because “ prejudice is not enough.”).

16. See, e.g., Brown v. Continental Can Co., 765 F.2d 810 (9th Cir. 1985)

(laches unavailable even though prejudice to defendant was likely through

loss of witnesses and documents); Anderson v. Anheuser-Busch, Inc.,

65 F. Supp. 2d 218 (S.D.N.Y. 1999) (twelve year delay between notice of

(Cont'd)

18

witnesses fade over time, and that their testimony regarding

historical events — who said what to whom and why — will

become correspondingly less vivid and less compelling as time

passes. But it typically will be impossibie for the employer to

show with specificity the important details that its witnesses

(a) formerly remembered but (b) have now forgotten, and if

those forgotten details cannot be recalled, they cannot be

proven in aid of a laches defense. Similarly, an employer can

generally claim prejudice stemming from the loss of a

document only if it can (a) prove that the document once

existed and (b) describe to some degree what the document

contained and why it would have helped. Such a showing

will often be impossible if the document was destroyed before

the employer knew it existed or that it would be needed.””

Statutes of limitations are the general rule precisely

because that kind of prejudice is assumed to occur as a matter

of course, but is, in most circumstances, difficult or impossible

to prove. It is in this respect, and for this reason, that rules of

limitation create “a presumption [of prejudice} which renders

proof unnecessary.” Stogner, 539 U.S. at 616.

B. Petitioner Advances A Fundamental Misreading Of

Bazemore

1. Bazemore applies only to facially

discriminatory systems perpetuated within the

limitation period

Petitioner finds support for a special compensation-only

limitations period in Bazemore, but she extends that case far

(Cont'd)

right to sue and lawsuit insufficient to warrant application of laches); Askins

v. Imperial Reading Corp., 420 F. Supp. 413 (W.D. Va. 1976) (four year delay

insufficient to warrant application of laches, where defendant could not

particularize its claim of what testimony had been affected by delay).

17. Although, as noted supra, the EEOC requires that employers keep

certain specific records, it is impossible for an employer to know what

other records might prove vital to its defense until issue is joined by the

filing of a charge. For example, travel information — not among the kinds

of records the EEOC requires the employer to keep — showing that the

complainant was in another city at the time of a critical meeting or

conversation could be devastating to complainant's credibility — and could

thus win the employer a trial — yet may well be innocently and lawfully

destroyed while the complainant waits years to file a charge.

19

beyond what its factual context and the language of the

opinion allow. Prior to the passage of Title VII, the state

agriculture extension service in North Carolina had been

organized into two separate divisions — a so-called “Negro

Branch,” which was staffed exclusively by African Americans

and served only black farmers throughout the state, and a

second branch (which had no racial designation) that was

staffed only by whites. 478 U.S. at 390-91. The white employees

who served white farmers had a pay scale applicable only to

them. Agents in the “Negro Branch” had their own formal

pay structure, and it uniformly paid them less to do the same

work as similarly situated whites. Id.

When Title VII became law, the agency eliminated its race-

specific labels and began slowly reducing the pay disparities

that had previously existed. The disparities continued after

Title VII became applicable to the states in 1972, however, and

work assignments allegedly continued to be race-based. Id. at

391. The Bazemore plaintiffs complained that the state agency

was, at the time of the suit (and thus within the limitations

period), perpetuating “separate wage systems” that

deliberately paid African Americans less than similarly

situated white employees. See 1986 No. 85-93, WL 728395 at *

6-9 (Jan. 10, 1986). (brief of Bazemore petitioners). Moreover,

the perpetuation of the prior segregated pay structure had been

acknowledged in writing by the agency’s director. Id. at 9.

The court of appeals held that the employees’

discrimination claims were time-barred because the pay raises

given within the limitations period were not adverse to black

employees, but this Court reversed. In defining when the

actionable violation had occurred, the Court held that an

employer could not defend a current facia!ly discriminatory pay

structure by arguing that it had previously engaged in the same

discriminatory conduct without complaint. 478 U.S. 386-88.

“[T]o the extent an employer continue[s] to engage in [a

discriminatory] act or practice [within the limitations period],

it is liable” under Title VIL, even if it also made discriminatory

decisions before the limitations period without a timely charge

having been filed. Id. at 394-96 (emphasis added). The Court

distinguished its prior decision in Evans by noting that in that

20

case, the “Respondent [had] made no allegation that the

seniority system itself was intentionally designed to

discriminate.” Id. at 396 n.6 (emphasis added). The Court thus

drew a bright line between “system[s] intentionally designed

to discriminate” operating within the limitations period, which

can be challenged every time the system is applied (the facts

in Bazemore) and compensation decisions made pursuant to a

facially neutral pay structure, which must be challenged at

the time they occur.

The Court also noted that in Evans, the employer's

discriminatory decision had been made and effected well

outside the limitations period, and that the employer had made

no decision within the limitations period other than the refusal

to un-do the consequences of those prior, time-barred

decisions. In Bazemore, by contrast,

petitioners are alleging that in continuing to pay

blacks less than similarly situated whites, respondents

have not from the date of the Act forward “made all their

employment decisions in a wholly nondiscriminatory

way.” Ibid. Our holding in no sense gives legal effect

to the [time-barred] actions, but, consistent with Evans

..., focuses on the present salary structure, which is

illegal if it is a mere continuation of the pre-1965

discriminatory pay structure.

478 US. at 396 n.6 (emphasis added). It was in this context

that Justice Brennan observed that “[e]ach 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.” Id. at 395-96.

In Lorance, the Court had another occasion to explain the

relationship between the Evans general rule and the Bazemore

exception. In that case, the plaintiffs challenged an allegedly

discriminatory seniority system. Although the system was

neutral on its face, the plaintiffs alleged that it had been

adopted with the Specific purpose of discriminating against

women. The Court explained that with

“a facially neutral system [that nonetheless was

specifically designed to discriminate], the

21

discriminatory act occurs only at the time of

adoption. ... [Conversely,] a facially discriminatory

system [like the pay structure at issue in Bazemore]

by-definition discriminates every time it is applied.

This is a material difference for purposes of the

analysis we employed in Evans and Ricks — which

focuses on the timing of the discriminatory act for

purposes of the statute of limitations. It ... also

[explains the “each week’s paycheck” language] of

Bazemore v. Friday....” Id. at 912 n.5 (emphasis

added)."*

Lorance thus underscored the ingredient essential to

application of the Bazemore exception to the Evans/Ricks general

rule: a “facially discriminatory system” discriminates every

time it is applied, and thus is a violation of the Act “occurs”

whenever it operates.’’ A facially neutral system is not.”

2. The Bazemore exception to the general rule

does not apply here

Petitioner's claims are resolved by Evans and Ricks, not

by Bazemore. Petitioner does not allege what the Bazemore rule

requires: a facially discriminatory pay structure, established

and perpetuated specifically to impose disparate pay. To the

contrary, petitioner insists that she was the victim of Goodyear

18. The Morgan Court also specifically noted that in Bazemore, it had

considered a discriminatory “salary structure,” 536 U.S. at 112.

19. It would not be enough for application of the Bazemore exception

for a plaintiff to allege that the employer's facially neutral pey system

discriminates against a protected class as a whole —- i.c.,a pattern or practice

of discrimination. Rather, the Bazemore exception applies only when the

pay system is discriminatory on its face, and is imposed by the employer

for that very purpose, as was the case in Bazemore.

20. Lorance’s application to seniority systems was superseded by the

Civil Rights Act of 1991, but nothing in the 1991 Act undermined the Court's

definition of a “facially discriminatory system,” or the Court's analysis of

Bazemore. See, e.g., Law v. Continental Airlines Corp. Inc., 399 F.3d 330, 333

(D.C. Cir. 2005) (quoting Lorance, 490 U.S. at 912)). The statute also left the

Evans/ Ricks limitations rule unaffected outside of the seniority system

context, see, e.g., 137 Cong. Rec. S15485 (Oct. 30, 1991) (interpretive

memorandum of Sen. Danforth (“[t}his legislation should not be interpreted

to affect the sound rulings of the Supreme Court regarding ‘continuing

violations’ theory under Title VII.”).

22

managers who violated the employer's explicit rules against

discrimination and ignored the company’s pay guidelines. See.

e.g., Pet. br. at 6 (supervisor “did not make his pay

recommendations in accordance with Goodyear’s purported

policy”).”* Petitioner never argued that Goodyear’s salary

structure was designed and implemented in order to

discriminate or that it was facially discriminatory; she argued

that her relatively low pay was the down-stream consequence

of falsified audits of her work and a poor performance

evaluation given to her because she refused to go on a date

with her boss. See Pet. br. at 5.”

In sum, petitioner alleges conduct by managers taken

in contravention of the employer's po) icies and procedures

21. According to petitioner, Goodyear based annual pay raises on

recommendations from the Business Center Manager, who made

recommendations based on annual employee pe .ormance evaluations.

These annual evaluations were in turn based on production data,

managerial judgments about the employee’s work performance, and on

reports from Performance Auditors about employee performance. See Pet.

br. at 5.

22. Petitioner’s complaint regarding the persisting impact of now-

time-barred pay decisions theoretically might also have been cast as an

argument in support of a disparate impact claim, but there are three reasons

such a claim is no answer for petitioner here. First, petitioner never pursued

a disparate impact claim, and so it is too late to do so now. See Raytheon Co.

v. Hernandez, 540 US. 44, 53-54 (2003). Second, the Court has held that a

pay disparity based on some factor other than sex — the essential attribuce

of a disparate impact claim — is never actionable in a Title VII sex

discrimination case. County of Washington v. Gunther, 452 U.S. 161, 170-71

(1981) (“[E]mployers [can] defend against charges of [sex] discrimination

where their pay differentials are based on a bona fide use of ‘other factors

other than sex.’”) (citations omitted); see also Los Angeles, Dep't of Water &

Power v. Manhart, 435 U.S. 702, 710, n.20 (1978) (gender-based disparity in

pension benefits “determined by .. . actual life span [and] thus [is] “based

on [a] factor other than sex,’ and consequently [is] immune from challenge”).

Finally, discrimination in compensation is prohibited by Section 703(a)(1);

the Court observed just last term in Smith v. City of Jackson, that the language

of that provision “does not encompass disparate impact liability.” 544 U.S.

228, 236 n. 6 (2005) (construing identical language in the Age Discrimination

in Employment Act). Conversely, Section 703(a)(2), the Title VII language

that provides the textual basis for disparate impact claims, does not prohibit

compensation discrimination, but only those employer actions that “tend

to deprive individuals of employment opportunities or otherwise adversely

affect their status as employees.”

23

(what petitioner calls the company’s “neutral merit system,”

Pet. br. at 5, 26); Bazemore involved and implemented policies

and procedures designed and implemented by the employer from

the outset to disadvantage the protected class. Bazemore does

not apply.”

C. Petitioner’s Attempt to Divorce Intent From Adverse

Action Is Fundamentally At Odds With The Purpose

of Title VII And The Court's Prior Cases

A claim of disparate treatment discrimination requires the

coincidence of two elements: an intent to discriminate and an

act of discrimination, i.e., an adverse employment action.

See United States Postal Service Bd. of Governors v. Aikens, 460

U.S. 711, 715 (1983) (critical factual inquiry in every Title VII

disparate treatment case is “whether the defendant

intentionally discriminated against the plaintiff’) (emphasis

added); see also Burlington N. & Santa Fe Ry. Co. v. White, 126S.

Ct. 2405, 2411-12 (2006) (adverse employment action required

for discrimination claim). It is not sufficient for a plaintiff to

show only a biased turn of mind or an inequality of result.”

In petitioner's view, however, at least in the salary setting

context, the two need not coincide in any respect; the animus

and the adverse result can be separated by decades, and the

individuals responsible for taking the adverse action — here

issuing a pay check, or at least causing a computer to do so —

need not be the same as (or even known by) the individual

23. Compare Shea v. Rice, 409 F.3d 448 (D.C. Cir. 2005) (denying

employer's motion to dismiss because plaintiff alleged a currently operating

facially discriminatory diversity policy that set up a two-class pay

structure); Law, 399 F.3d at 333 (explaining that a facially discriminatory

system categorically, purposefully, and invariably treats similarly situated

employees differently) (quoting Lorance, 490 U.S. at 912)); see also Int'l Union,

UAW, v. Johnson Controls, Inc., 499 U.S. 187, 198 (1991) (employer policy

expressly designed and purposefully implemented to deny women certain

employment opportunities).

24. Petitioner argues in passing that the court of appeals erred when

it concluded that the only salary setting decision made within the limitations

period was not biased. See. e.g., Pet. br. 11. Petitioner did not seek, and the

Court did not grant, certiorari to resolve that question, however, and, as

the case comes to the Court, we presume that this decision was correct and

address it no further.

24

who harbored the discriminatory intent, who may be retired,

dead, or working else’ vhere when the adverse action occurs.

Thus, petitioner concedes that

If the unlawful employment practice in a disparate

pay case is the pay-setting decision (and only that

decision), then the violation occurs at the time of that

decision and the limitations period runs from that

date.

Pet. br. at 18.

But petitioner and her amici insist that Title VII prohibits

discrimination with respect to the result of the salary setting

process, “not with respect to compensation decisions.” Pet. br.

at 23 (emphasis in original). Petitioner’s amici posit that

“[{d]iscriminatory paychecks are not actionable simply because

they are ‘sufficiently related’ to a pay decision that occurred

outside the limitations period. . . . They are actionable because

they pay less money to an employee because of sex.” Br. of

Nat'l Partnership for Women & Families, et al. at 8-9 (emphasis

added).

As noted above, the Court has repeatedly and expressly

held otherwise; it is the decision that causes the limitations

period to commence. In Ricks, the Court held that “the

limitations period[] commenced at the time the [allegedly

discriminatory] decision was made and communicated” to the

complainant. In Chardon (a § 1983 discrimination case), the

Court again held that the limitations period began to run when

“the operative decision was made — and notice [was] given”

— to the complainant. 454 US. at 8.

And in Bazemore, the Court reiterated that it was not

sufficient for a complainant to allege a discriminatory decision

outside the limitations period resulting in financial damage

within the limitations period. It held that a unique rule of

limitations was warranted there only because petitioners were

alleging that the respondents “have not from the date of the Act

forward ‘made all {their] employment decisions in a wholly

nondiscriminatory way,” 478 U.S. at 396 n.6 (emphasis added).

25

Petitioner thus has a mistaken view regarding the

centrality of the decision and the pre-requisite, concurrent intent

to the timeliness question, and this has led her to place great

stock in “a wide variety of statutory and common law claims

[with respect to which] recurring payments give rise to

recurring causes of action under the Equal Pay Act, the Fair

Labor Standards Act, the common law of contract, and a range

of other analogous contexts.” Pet. br. at 13. Petitioner misses

the obvious difference between those schemes and Title VII:

liability under those other statutory and common law schemes

does not hinge upon the defendant's intent, and thus on the

employer's decision to take a particular action.

The EPA, for example, imposes “a form of strict liability”

on employers who pay males more than females for

performing the same work. Mickelson v. New York Life Ins. Co.,

460 F.3d 1304, 1310 (10th Cir. 2006). “[I]n other words, the

plaintiff in an EPA case need not prove that the employer acted

with discriminatory intent.” Id. (citing Ryduchowski v. Port

Auth. of N.Y. and N.]., 203 F.3d 135, 142 (2d Cir. 2000)). A

plaintiff makes out a prima facie case of liability under the EPA

simply by showing “that the employer pays unequal wages

for equal work, as defined in the Act.” Mitchell v. Jefferson

County Bd. of Educ., 936 F.2d 539, 547 (11th Cir. 1991) (EPA

“plaintiff is not required to prove _ intentional

discrimination” ).” For Title VII liability, that is not sufficient;

there must be an effectuated decision to pay unequal wages.

and that decision must be premised on unlawful bias.

III. The EEOC’s Interpretation Of Supreme Court Precedent

Is Not Entitled To Deference Because Parsing Cases

Does Not Require Special Agency Expertise

Petitioner seeks support for her position in what she

describes as the EEOC’s “consistent” position on the

25. The question of intent is also not relevant to whether a plaintiff is

entitled to recovery under the FLSA. Under the FLSA, intent is only relevant

to questions of 1) whether an employee is entitled to double liquidated damages

and 2) whether the statute of limitations should be extended from two to three

years. See 29 U.S.C. §§ 216(b), 255, 260; see also McLaughlin v. Richland Shoe Co.,

486 U.S. 128, 132-33 (1988). Likewise, in an ordinary breach of contract case,

the motive of the breaching party is irrelevant to a determination of damages.

See Edens v. Goodyear Tire & Rubber Co., 858 F.2d 198, 203 (4th Cir. 1988)

(citing Holland v. Spartanburg Herald-Journal Co., 166 S. Ct. 454, 465 (1932)).

26

application of Bazemore to compensation cases. Pet. br. at 32.

This reliance is misplaced for two reasons.

First, the EEOC’s position on this question does not

depend upon an “interpretation of the statute,” but rather

represents the EEOC’s reading of Bazemore and therefore is

not entitled to deference. See Reno v. Bossier Parish Sch. Bd., 528

U.S. 320, 336, n.5 (2000) (affording no deference to a

longstanding Justice Department practice that was based on

its interpretation of a Supreme Court case). Courts “are not

obliged to defer to an agency’s interpretation of Supreme Court

precedent under Chevron or any other principle.” Akins v. FEC,

101 F.3d 731, 740 (D.C. Cir. 1996) (en banc),vacated on other

grounds, 524 U.S. 11 (1998)). “[A]gencies have no special

qualifications of legitimacy in interpreting Court opinions.

There is therefore no reason for courts — the supposed experts

in analyzing judicial decisions — to defer to agency

interpretations of the Court's opinions.” Univ. of Great Falls v.

NLRB, 278 F.3d 1335, 1341 (D.C. Cir. 2002) (quoting Akins, 101

F.3d at 740)); see also NLRB v. IBEW, Local 340, 481 U.S. 573,

597 (1987) (“We defer to agencies . . . in their construction of

their statutes, not of our opinions.”) (Scalia, J., concurring).

In claiming a special rule of limitations for salary-setting

cases, the EEOC has attempted to construe this Court's

decisions and not the text of Title VII. The EEOC’s current,

revised Compliance Manual, which for the first time

specifically refers to discriminatory paychecks as “repeated

occurrences of the same discriminatory employment action,”

makes clear that the agency’s “ paycheck” position is based on

its interpretation of Bazemore’s meaning in the wake of

Morgan.”* See EEOC Compliance Manual (July 21, 2005)

(Revision to Threshold Issues: “The revision conforms the

Manual’s discussion of the continuing violation doctrine to

the Supreme Court's decision in National Railroad Passenger

Corp. v. Morgan”). When discussing paychecks, the EEOC’s

26. Compare EEOC Compliance Manual § 2-IV.C.2.b. at 35 and n.184

(July 27, 2000) (citing to Bazemore and referring to Title VII pay

discrimination claims as one of two types of continuing violation) with

EEOC Compliance Manual § 2-IV.C.1.a. at 42 and n. 183 (July 21, 2005)

(also citing Bazemore, but stating that each occurrence of Title VII pay

discrimination, “such as discriminatory paychecks,” is a discrete act).

27

Compliance Manual does not attempt to parse the language

of 42 U.S.C. § 2000e-5(e)(1), id. at p. 42, but does cite directly to

Bazemore, n. 183; compare Burlington Northern, 126 S.Ct. at 2413

(detailing the EEOC’s interpretation of the language of Title

VII's retaliation provision).

Tellingly, the EEOC argued below that the issue in this

case is not one of statutory construction, but rather amounts

to a dispute over the construction of this Court's “decision in

Bazemore v. Friday.” See EEOC’s Br. in Support of Petition for

Rehearing and Suggestions for Rehearing En Banc at 6.”

In fact, the EEOC never asked the Eleventh Circuit for deference

to its interpretation of Bazemore, nor has it asked this Court

for such deference.

Second, although petitioner claims that the EEOC’s

position on the application of Bazemore has been both clear

and consistent, it has been neither. Below, the agency had this

to say about the law applicable to this case:

If it were the case that a Goodyear manager made an

openly discriminatory salary-setting decision back in

1979 (when Ledbetter was hired), and that all of the

company’s decisions affecting her salary since then were

non-discriminatory, Ledbetter could and should have

challenged that 1979 decision by filing a timely charge.

EEOC br. at 7 (emphasis added). Amici fully endorse this

construction of the Evans rule, and believe that it should guide

the Court in this case. Each salary-setting decision is a discrete

act, is independently actionable, and every such a decision

“could and should” be challenged, if at all, within the

statutorily prescribed period.

The very next sentence in the EEOC’s brief, however,

asserts that “ petitioner's failure to do so [i.e., to “challenge[]

that 1979 decision by filing a timely charge” ] does not deprive

her of her right to seek relief [for] discriminatory paychecks

she received in 1997 and 1998.” Id. at 8. These sentences are

27. “We believe that [the Eleventh Circuit's] decision is inconsistent

with decisions of the Supreme Court and of this Court. . . .” EEOC’s Br. in

Support of Petition for Rehearing and Suggestions for Rehearing En Banc

at 3 (www.eeoc.gov/briefs/Ledbetter.txt (last visited 10/23/06)) (page

references are based on on-line version of brief found on EEOC website).

28

irreconcilable, and they reflect an almost schizophrenic

confusion at the EEOC over the event that triggers the Act's

filing requirement.

Moreover, while the agency’s Compliance Manual has

construed Bazemore to require a special limitations rule

applicable only to salary-setting decisions, the agency has also

stated — in its regulation implementing Title VII's

recordkeeping requirements” (which is entitled to judicial

deference) — that employers must keep compensation records

for just one year, and has explained that doing so will eliminate

any “possibility that an employer or labor organization will

have legally destroyed its employment records before being

notified that a charge has been filed.” 54 Fed. Reg. 6551 (Feb.

13, 1989) (emphasis added). This directive cannot be reconciled

with the EEOC’s articulated view that an employer can be

called upon to defend salary setting-decisions made years or

decades before the charge.

IV. The Distinction Between “Pay” Cases On The One

Hand, And “Everything Else” On The Other, Is An

Illusion .

Petitioner suggests that the Court distinguish between

“disparate pay claims” and all other forms of discrimination

for limitations purposes. This taxonomy is deceptive and

would encourage the sort of artful pleading this Court

anticipated and attempted to forestall in Evans. 431 U.S. at 560.”

28. 29 C.F.R. §1602.14.

29. These false distinctions have led to peculiar and inconsistent

results as courts struggle to separate pay qua pay from the consequences of

non-pay decisions See, e.g., Reese v. Ice Cream Specialties, Inc., 347 F.3d 1007,

~ 1013 (7th Cir. 2003) (finding a denial of raise claim filed three years after

the actual denial to be timely because the case did not involve a “discrete

discriminatory act such as a failure to promote.”); Tademe v. Saint Cloud

State Univ., 328 F.3d 982 (8th Cir. 2003) (dismissing claims based on 1996

denial of tenure and 1998 discriminatory promotion, but allowing “salary

discrimination” stemming from much earlier 1991 decision to proceed to

summary judgment); see also Taylor v. Northeast Ill. Reg'l R.R. Corp., No. 01

C 6319, 2004 WL 635058 (N.D. Ill. 2004) (“To the extent that Taylor's charge

of discrimination is based on his being hired as a P8 paralegal at a lower

starting salary than non-black P8 paralegals, he states a strict paycheck

(Cont'd)

29

Nearly every form of adverse employment action has an

impact on compensation — denied promotions, demotions,

transfers, reassignments, tenure decisions, suspensions and

other discipline — they all have the potential to affect pay.

Expanding the Bazemore exception to include any decision that

impacts pay would turn the exception into the rule, and the

general rule established in Evans and Ricks into a dead letter.

Presumably petitioner would agree that the pay

consequences of a denied promotion would not bring a case

within the special Bazemore exception, but if that is so it is

difficult to see what in her case makes Bazemore applicable.

This case is a “disparate pay dispute” only in the most

derivative sense.® Petitioner's core complaints relate to a poor

performance evaluation. That evaluation, she alleges, was

prepared by her manager as retribution because petitioner

refused to go on a date with him. The compensation

consequences of that evaluation appeared in petitioner's

paychecks, but only in the same way that a denied promotional

opportunity would have a continuing monetary consequence

for the unsuccessful candidate, and petitioner does not appear

to argue that Bazemore would apply in that latter

circumstance.”’ Thus, it is difficult to divine the rule petitioner

(Cont'd)

claim. This means that checks received by Taylor within the 300-day

limitations period which reflect [the employer’ s] initial decision to pay him

less than non-black P8 paralegals will not be time-barred... . But, to the

extent that Taylor's charge of discrimination is based on his being given a

lower annual salary increase than non-black P8 paralegals, he complains

of discrete acts of discrimination that are subject to the 300-day limitations

period.”)

30. Petitioner's term — “disparate pay claim” — is confusing.

Petitioner's proposed rule would not apply to many forms of pay, such as

bonuses and stock grants, that are one-time events and do not affect each

paycheck. Conversely, as explained in the text, petitioner would extend

the rule to cases that involve employer actions that affect employee pay

only in a derivative sense.

31. Poor performance evaluations are themselves actionable when

they affect grade or salary. See Taylor v. Small, 350 F.3d 1286, 1293 (D.C.

Cir. 2003); James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 377 (4th Cir.

2004).

30

would use to distinguish her own “pay disparity case” —

allegedly covered by Bazemore — from the run of the mill cases

governed by Evans.

CONCLUSION

For the foregoing reasons, the decision of the district court

dismissing petitioner’s pay discrimination claim with

prejudice should be affirmed.

Respectfully submitted,

Rosin S. Conrad Neat D. MOLLEN

SHANE BRENNAN Counsel of Record

NATIONAL CHAMBER LITIGATION CARSON H. SULLIVAN

CENTER, INC. Pau, Hastincs, JANOFSKY

1615 H Street, N.W. & Wacker LLP

Washington, D.C. 20062 875 I5th Street, N.W.

(202) 463-5337 Washington, D.C. 20005

Karen R. HARNED (202) 551-1700

EvizABeTH A. GAupbIO

NATIONAL FEDERATION

OF INDEPENDENT BUSINESS

LEGAL FOUNDATION

1201 F Street, N.W., Suite 200

Washington, D.C. 20004

(800) 552-6342

Attorneys for Amici Curiae

The Chamber of Commerce of the United States of America and

National Federation of Independent Business Legal Foundation