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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0244%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007
- **Citation:** 550 U.S. 618

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0244%3A10. Public record. Not legal advice.