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

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No. 05-1074

IN THE sini te | :

Supreme Court of the United Statr

LILLY M. LEDBETTER,

Petitioner,

Vv.

GOODYEAR TIRE AND RUBBER COMPANY, INC.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF AMICI CURIAE OF THE EQUAL

EMPLOYMENT ADVISORY COUNCIL AND THE

SOCIETY FOR HUMAN RESOURCE MANAGEMENT

IN SUPPORT OF RESPONDENT

ANN ELIZABETH REESMAN

LAURA A. GIANTRIS

Counsel of Record

MCGUINESS NORRIS &

WILLIAMS, LLP

1015 Fifteenth Street, N.W.

Suite 1200

Washington, DC 20005

(202) 789-8600

Attorneys for Amici Curiae

Equal Employment Advisory

Council and Society for Human

October 2006 Resource Management

ee a rt a eT A RE TT A eS

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WaSHINGTON, D.C. 20001

“i ¥ ee aaen

* ‘

TABLE OF CONTENTS

TABLE OF AU TIBORIT IES ...00..cccccoscscscsscccseccsrsccscessense

INTEREST OF THE AMICI CURIAE ............:ccccc0000000s

EARNS S OF TEs CARB anne cccccescccscerncvcessevesevccee

SUMMARY OF ARGUMENT...............:.cccccssssseeeeseseees

a Ne ETE

UNDER THIS COURT’S DECISIONS IN

MORGAN AND EVANS, THE STATUTORY

LIMITATIONS PERIOD ON A CLAIM OF

PAY DISCRIMINATION BEGINS TO RUN

WHEN A DECISION AFFECTING PAY IS

A. Title VII Requires An Aggrieved Individ-

ual To File An Administrative Charge

Within 180 Or 300 Days Of An Allegedly

Discriminatory Discrete Event ....................

B. Employment Decisions That Affect A Per-

son’s Pay Are Discrete Events And Must

Be Challenged Within The 180/300-Day

, |, RAPPERS SARE: We ees eee nae

C. Because The Facially Discriminatory Sal-

ary Structure At Issue In Bazemore Was A

“Present Violation” Of The Law That

Could Be Challenged “At Any Time,” It Is

Distinguishable From This Case..................

(i)

TABLE OF CONTENTS—Continued

ll. A POLICY THAT PERMITS DISCRIM-

INATION PLAINTIFFS TO CHALLENGE

CURRENT PAY, AS OPPOSED TO DECI-

SIONS AFFECTING PAY, WILL EFFEC-

TIVELY ELIMINATE THE LIMITATIONS

PERIOD FOR ALL PAY-RELATED DECI-

SIONS—IMPOSING AN UNDUE BURDEN

ON EMPLOYERS TO DEFEND AGAINST

PE Ca icscinsennesensdccusenciinibatsnnicnigtaubiniéol

A. Allowing Pay Discrimination Plaintiffs To

Challenge Current Pay At Any Time,

Without Regard To When Decisions

Affecting Their Pay Were Made, Would

Effectively Result In The Elimination Of

A Limitations Period For Any Pay-

Influencing Employment Decision..............

B. Exempting Pay Discrimination Plaintiffs

From The Congressionally-Mandated Stat-

ute Of Limitations Period Would Impose

An Undue Burden On Employers To

Defend Against Stale Claims................00005

SPC AIIOY sitciscechinnsonnsnscnntasicsienssunteinuctinimnnensiidians

iii

TABLE OF AUTHORITIES

FEDERAL CASES Page

Alexander v. Gardner-Denver Co., 415 U.S. 36

a cictsiciiihaaabiibictnabuaiasbiiatlsedtentilibeiaaistpiiliaeinndsan 6,7

Bazemore v. Friday, 478 U.S. 385 (1986).....5, 11, 12, 13

Burnett v. New York Central Railroad, 380 U.S.

IIR steiscctteerinnsisdesciaditanislciadeseiiainipistainnadiagtitiatlingh 6, 16

Delaware State College v. Ricks, 449 U.S. 250

INIT iii iloalbatiaela apiedalenhataistitbaiiiaiisitas 7, 9,17

International Union of Electrical Workers v.

Robbins & Myers, Inc., 429 U.S. 229 (1976)... 14

Johnson v. Railway Express Agency, Inc., 421

ee SEF CUPID nrccrecsentnisntetienianininitashtiliiaeiteiidde 17

Lorance v. AT&T Technologies, Inc., 490 U.S.

Pe cistssecisnsntsiiesniisiesniipinatilaitiicbacimbtaiaiabitaiuinnh 5,13

Miller v. New Hampshire Department of Cor-

rections, 296 F.3d 18 (Ist Cir. 2002)................. 10

Mohasco Corp. v. Silver, 447 U.S. 807 (1980) ..... 14, 15

National Railroad Passenger Corp. (Amtrak) v.

Morgan, 536 U.S. 101 (2002)......:..cccsceseeseeeeeees passim

Thomas v. Eastman Kodak Co., 183 F.3d 38 (\st

0 CRE OE SRE eA ERED 10, 11

United Air Lines, Inc. v. Evans, 431 U.S. 553

SATE i teiobinidiiacenbipesigeilabiniadibdeaidieicaisitidaesiahiiaiataion passim

FEDERAL STATUTES

Title VII of the Civil Rights Act of 1964, 42

ay a SPIED ininiinincssretsetiesdctsaiaseigliniene passim

Se aes a sithcnscinntnttanceninntonniasabiinis 5, 7, 15-

Oe sb I cntccnstesedpenscnianabitdaaamesiaanes 7

FEDERAL REGULATIONS

Gy PT Gicicteneienicedhtthnninisieniianinmeies 6,17

IN THE

Supreme Court of the United States

No. 05-1074

LILLY M. LEDBETTER,

Petitioner,

Vv.

GOODYEAR TIRE AND RUBBER COMPANY, INC.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF AMICI CURIAE OF THE EQUAL

EMPLOYMENT ADVISORY COUNCIL AND THE

SOCIETY FOR HUMAN RESOURCE MANAGEMENT

IN SUPPORT OF RESPONDENT

The Equal Employment Advisory Council and the Society

for Human Resource Management respectfully submit this

brief as amici curiae.' Letters of consent from both parties

have been filed with the Court. The brief urges this Court to

affirm the decision below, and thus supports the position of

the Respondent, Goodyear Tire and Rubber Company, Inc.

' Counsel for amici curiae authored the brief in its entirety. No person

or entity, other than the amici, their members, or their counsel, made a

monetary contribution to the preparation or submission of the brief.

INTEREST OF THE AMICI CURIAE

The Equal Employment Advisory Counci! (EEAC) is a

nationwide association of employers organized in 1976 to

promote sound approaches to the elimination of employment

discrimination. Its membership includes over 320 major U.S.

corporations. EEAC’s directors and officers include many of

industry’s leading experts in the field of equal employment

opportunity. Their combined experience gives EEAC a

unique depth of understanding of the practical, as well as

legal, considerations relevant to the proper interpretation and

application of equal employment policies and requirements.

EEAC’s members are firmly committed to the principles of

nondiscrimination and equal employment opportunity.

The Society for Human Resource Management (SHRM or

the Society) is the world’s largest association devoted to

human resource management. Representing more than

210,000 individual members, the Society’s mission is to serve

the needs of HR professionals by providing the most essential

and comprehensive resources available. As an influential

voice, the Society’s mission is also to advance the human

resource profession to ensure that HR is recognized as an

essential partner in developing and executing organizational

strategy. Founded in 1948, SHRM currently has more than

550 affiliated chapters within the United States and members

in more than 100 countries. ‘

Amici's members are employers or representatives of

employers subject to Title VII of the Civil Rights Act of 1964

(Title VID, 42 U.S.C. §§ 2000e ef seg., and other equal

employment statutes and regulations. Amici's members,

therefore, have a direct and ongoing interest in the issues

presented in this case.

EEAC and SHRM seck to assist this Court by highlighting

the impact its decision may have beyond the immediate

concerns of the parties to the case. Accordingly, this brief

brings to the attention of this Court relevant matters that the

parties have not raised. Because of their experience in these

matters, EEAC and SHRM are well situated to brief this

Court on the concerns of the business community and the

significance of this case to employers.

STATEMENT OF THE CASE

Goodyear hired Lily Ledbetter as a “Supervisor,” later

called an “Area Manager,” at its Gadsden, Alabama tire plant

in 1979. Pet. App. 5a. An Area Manager is a salaried,

nonunion, floor-level manager who supervises one shift of

workers within a section of the plant. /d. at 3a.

Managerial employees’ salaries are based on a system of

annual merit-based raises, based on each employee’s per-

formance ranking as compared to other managers. /d. At the

beginning of her employment, Ledbetter was paid the same

salary as other male supervisors at the Gadsden plant. /d. at

4a, 12a. Throughout her nineteen-year career with the

company, however, her performance almost always ranked at

or near the bottom of Area Managers, and her merit increases

were calculated accordingly. /d at Sa: She last received a

merit increase in 1995. /d. at 9a.

In late 1996, Ledbetter was slated for layoff as part of

a plant-wide reduction in force, but remained employed

through 1997 as a substitute for other Area Managers on

long-term medical leave. /d. at 7a. She was not considered

for a raise in 1997 because she was slated for layoff. /d. at 8a

n.4. She received a low ranking in 1998 for her 1997

performance and again was denied a raise. /d. at 9a.

In March of 1998, Ledbetter filed an intake questionnaire

with the Equal Employment Opportunity Commission and

later a formal charge of discrimination. /d Eventually, Led-

better also brought a Title VII lawsuit, alleging that she had

received a discriminatorily low salary as an Area Manager

because of her sex. /d at 10a. The jury ruled in favor of

Ledbetter and recommended substantial back pay and mental

anguish awards plus almost $3.3 million in punitive damages,

which the judge cut back to $300,000 due to the statutory cap

on Title VII damages. /d. at 10a-lla. The trial court de-

clined to overturn the verdict, and Goodyear appealed to the

Eleventh Circuit. Jd. at 11a.

On appeal, the Eleventh Circuit reversed the lower court’s

decision, holding that Ledbetter could challenge at most the

pay decisions made in 1997 and 1998, and that Ledbetter had

not shown that either decision was discriminatory. /d. at 27a-

28a, 15a. In so ruling, the court relied on this Court’s

decision in National Railroad Passenger Corp. (Amtrak) v.

Morgan, 536 U.S. 101 (2002), which held that a plaintiff can

sue for “discrete acts” of discrimination only to the extent that

they occur within the limitations period. /d at 19a. Led-

better’s pay claims, the Eleventh Circuit concluded, are nec-

essarily based on pay decisions, at least in cases like this

where the employer conducts annual salary reviews, and

those pay decisions are “discrete acts” under Morgan. Id. at

17a-18a. As long as the plaintiff received a discriminatorily

low paycheck during the limitations period, the court rea-

soned, the plaintiff can look back as far as the most recent

underlying decision—but no further. /d. at 24a.

Applying this analysis to Ledbetter’s case, the Eleventh

Circuit concluded that she had failed to prove that dis-

crimination was the reason she was denied a raise in either

1997 or 1998. /d at 30a-3la. In 1998, the two male

employees who were ranked almost as low as Ledbetter, and

one ranked lower, did not receive raises either. Jd. at 31a. In

1997, Ledbetter did not receive a raise because she was about

to be laid off, and there was no evidence that she was

improperly selected for layoff. Jd. at 32a-33a. Accordingly,

the Eleventh Circuit reversed the lower court’s judgment

and ruled for Goodyear. /d at 37a. Ledbetter petitioned

this Court for a writ of certiorari, which was granted on

June 26, 2006.

SUMMARY OF ARGUMENT

Title VII requires an aggrieved individual to file an admin-

istrative charge of discrimination with the Equal Employment

Opportunity Commission within 180 or 300 days of the al-

legedly discriminatory event. 42 U.S.C. § 2000e-5(e). Under

this Court’s decisions in National Railroad Passenger Corp.

(Amtrak) v. Morgan, 536 U.S. 101 (2002) and United Air

Lines, Inc. v. Evans, 431 U.S. 553 (1977), the statute of limi-

tations for filing a claim of pay discrimination begins to run

when a decision affecting pay is made—and does not, as

Ledbetter argues, continue to run years later merely because

the effects of that decision may still be felt through periodic

paychecks.

Virtually all forms of employment discrimination have

some consequential, and to that extent, continuing effect on

their victims. But the decisions of this Court unequivocally

_ establish that continuing effects alone do not insulate alleged

acts of discrimination from the necessity for timely challenge.

Morgan, 536 U.S. at 114; Evans, 431 U.S. at 557. Led-

better’s reliance on the Court’s decision in Bazemore v.

Friday, 478 U.S. 385 (1986), to argue the contrary is mis-

placed. Because the facially discriminatory salary structure at

issue in Bazemore was a present violation of the law that

could be challenged “at any time,” it is distinguishable from

this case, where no facially discriminatory pay structure is

alleged and the challenged employment actions are discrete

performance appraisals used to support merit-based pay

decisions. Lorance v. AT&T Techs., Inc., 490 U.S. 900, 913

n.5 (1989) (superseded on other grounds by 42 U.S.C.

§ 2000e-5(e)(2)); Bazemore, 478 U.S. at 396 n.6.

If this Court were to permit pay discrimination plaintiffs to

challenge their current pay rate at any time, regardless of

when decisions affecting their pay were made, the result

would be the virtual elimination of a statute of limitations

period for any employment decision that either directly or

indirectly affected the person’s pay. This would impose an

undue burden on employers to defend stale claims long after

“evidence has been lost, memories have faded, and witnesses

have disappeared.” Burnett v. New York Cent. R.R., 380 U.S.

424, 428 (1965) (citation omitted).

Moreover, expanding the limitations period well beyond

300 days in cases involving alleged pay discrimination will

severely prejudice employers who reasonably have relied on

EEOC regulations permitting employers to lawfully destroy

employment records after one year, unless a charge has been

filed. 29 C.F.R. § 1602.14. These employers will not have

any documents to support pay decisions they made in the

past, thus undermining their ability to defend a subsequent

pay discrimination claim. Moreover, going forward, em-

ployers would be placed under the extraordinary burden of

having to save a/l employment records forever, because they

would not be able to anticipate which employment decisions

would generate pay discrimination charges.

ARGUMENT

I. UNDER THIS. COURT’S DECISIONS _ IN

MORGAN AND EVANS, THE STATUTORY

LIMITATIONS PERIOD ON A CLAIM OF PAY

DISCRIMINATION BEGINS TO RUN WHEN A

DECISION AFFECTING PAY IS MADE

A. Title VIL Requires An Aggrieved Individual

To File An Administrative Charge Within 180

Or 300 Days Of An Allegedly Discriminatory

Discrete Event

Title VII “specifies with precision the jurisdictional

prerequisites that an individual must satisfy before he is

entitled to institute a lawsuit.” Alexander v. Gardner-Denver

Co., 415 U.S. 36, 47 (1974). One of these prerequisites is

that aggrieved individuals must file an administrative charge

of discrimination with the Equal Employment Opportunity

~Commission (EEOC) within one hundred and eighty days

after the alleged discriminatory event. 42 U.S.C. § 2000e-

5(e).’ Title VII makes only one exception to this require-

ment. Where the aggrieved individual has filed a discrim-

ination charge with a state or local enforcement agency with

authority to grant or seek relief, he or she has “three hundred

days after the alleged unlawful employment practice

occurred” to file an EEOC charge. 42 U.S.C. § 2000e-S(e).

No other exceptions extend the length of Title VII’s limi-

tations period. ,

Congress mandated that the time limitations would start

with the date of the “alleged unlawful employment practice.”

42 U.S.C. § 2000e-S(e); Delaware State Coll. v. Ricks, 449

U.S. 250, 259 (1980) (internal quotation omitted). In

National Railroad Passenger Corp. (Amtrak) v. Morgan, 536

U.S. 101 (2002), this Court clarified that this means that a

Title VII plaintiff who challenges a “discrete” discriminatory

act (such as discipline, discharge, promotion, transfer, and

hiring), first must file an EEOC charge within 180 or 300

days of when the act “occurred”—or, as Morgan instructs, on

the day that it “happened.”’ /d. at 110, 113.

? The second prerequisite is that an individual must file suit within

ninety days of receiving a notice of the right to sue from the EEOC. 42

U.S.C. § 2000e-5(f).

* Morgan distinguished hostile work environment claims from claims

involving “discrete” acts, explaining that a hostile work environment

generally involves repeated conduct that occurs over a period of time—

perhaps even years. Morgan at 115. While a single act may not be

sufficient to support a claim of hostile environment discrimination under

Title Vil, the Court said, the cumulative total may. /d Therefore, this

Court interpreted Title VII as giving individuals 180 or 300 days from any

act that forms part of the hostile environment claim to file an EEOC

charge of harassment. /d. at 117-18.

Moreover, over the years tiis Court repeatedly has refused

to sanction arguments in favor of lengthening the limitations

period for discrete acts in certain cases beyond 180/300 days.

Most recently, for example, Morgan rejected the notion that a

series of discrete acts could work together to constitute a

single unlawful employment practice, noting that discrete acts

are “easy to identify” and “are not actionable if time barred,

even when they are related to acts alleged in timely filed

charges.” Jd. at 113-14. Morgan had challenged as dis-

criminatory several disciplinary actions. including written and

verbal counselings and suspensions from work without pay,

as well as the denial of training opportunities and his eventual

termination. The Court refused to allow Morgan to combine

events that occurred outside Title VII’s limitations period

with more recent events as a “continuing violation,” ruling

that any alleged discrete acts of discrimination falling outside

of the applicable filing period were dead for purposes of

bringing a valid Title VII claim, although they could be used

“as background evidence in support of [the] timely claim.”

Id. at 113.

Prior to Morgan, this Court held in United Air Lines, Inc. v.

Evans, 431 U.S. 553 (1977), that the present “effects” of past

discriminatory acts also are not actionable under Title VII and

that the law instead requires a plaintiff to show a “present

violation” of the law within the limitations period. /d. at 558.

In Evans, the plaintiff was forced to resign her position as a

flight attendant for violating a “‘no marriage’ rule” that later

was found to be discriminatory. /d. at 555. When she was

rehired four years later (after the company had abandoned the

“no marriage” rule), her seniority date did not reflect her

earlicr employment because company policy counted only

continuous time-in-service, which resulted in less pay and

benefits. /d. The plaintiff had not filed a timely admin-

istrative charge over her resignation, but tried to revive the

claim after her rehire by alleging that the company’s seniority

system gave “present effect to the past illegal act and

therefore perpetuate[d] the consequences of forbidden dis-

crimination.” /d. at 557.

This Court rejected Evans’ claim as untimely even though

the discharge decision continued to have an effect on her pay

and benefits. /d. at 558. According to the ruling, “emphasis

should not be placed on mere continuity,” but rather on

“whether any present violation exists.” Jd. There was no

present violation, this Court explained, because “[a] dis-

criminatory act which is not made the basis for a timely

charge is the legal equivalent of a discriminatory act which

occurred before the statute was passed.” /d. In other words,

it is “merely an unfortunate event in history which has no

present legal consequences.” /d.

Likewise, Delaware State College v. Ricks, 449 U.S. 250

(1980), held that the college’s decision to deny tenure was the

discriminatory act that marked the beginning of the limi-

tations period, even though the plaintiff did not feel the

effects of the decision until his termination. Again, the Ricks

Court reminded litigants that “[m]Jere continuity of employ-

ment, without more, is insufficient to prolong the life of a

cause of action for employment discrimination.” /d. at 257

(citing Evans).

Accordingly, the law is well settled that a Title VII plaintiff

must challenge a discriminatory discrete event within the

180/300 day time frame established by Congress.

B. Employment Decisions That Affect A Person’s

Pay Are Discrete Events And Must Be Chal-

lenged Within The 180/300-Day Time Frame

To date, this Court has not treated decisions that affect a

person’s pay any differently than decisions that do not for the

purpose of ascertaining the timeliness of a claim. For

example, the Court permitted Morgan to challenge a decision

to deny him training opportunities (which presumably had—

or could have—effected his pay), but only because the

decision occurred within the statute of limitations period.

Morgan at 114. On the other hand, because Evans had been

discharged pursuant to a discriminatory policy outside the

limitations period, she could not challenge her discharge,

even though it had a continuing effect on her pay within the

limitations period. Evans at 557.

Ledbetter’s case falls squarely within this line of cases. In

her complaint, Ledbetter challenges discrete acts~—annual

performance evaluations—that directly effected her eligibility

for pay raises. Pet. for Writ of Cert. at 4 (“This pay

differential was accomplished through discriminatory annual

evaluations and pay raises”). Goodyear determined the

salaries of Area Managers using a system of annual merit-

based raiscs, with any award determined by the employee’s

performance in relation to other employees. Ledbetter’s

challenge focuses on these evaluations, which she claims did

not “accurately reflect the true quality of her work” or were

deliberately “falsified” and, therefore, resulted in her re-

ceiving less pay. Pet. Bricf at 5. ,

Under Morgan, each of these performance evaluations

constitutes a separate “discrete act” that triggers the statute of

limitations period. Miller v. New Hampshire Dep't of Corrs.,

296 F.3d 18, 22 (Ist Cir. 2002) (allegedly discriminatory

transfer, letter of warning, and performance evaluation were

discrete acts and, therefore, time-barred). Although some

courts have said the limitations period for challenging an

adverse performance evaluation will not run unless some

tangible, adverse consequence results from it (such as

discipline, discharge or loss of pay), a Title VII plaintiff still

must file a timely charge at least as soon as the implications

of the evaluation have crystallized. As the Court of Appeals

for the First Circuit explained in Thomas v. Eastman Kodak

Co., 183 F.3d 38 (1st Cir. 1999):

[E]mployees do not have an unfettered right to reach

back to challenge previous evaluations. The key is

whether those evaluations had tangible, concrete effects

at the time they were conducted. If the evaluation did

cause tangible, concrete harm, the notice standard

requires the injured employee to promptly bring suit to

recover for those harms. Failure to do so will render any

later claim regarding those particular harms time-barred.

If, for example, a poor job evaluation resulted in a denial

of a salary increase, notice of the denial would mark the

accrual point for a pay inequity claim.

/d. at 50 and n.8.

In this case, Ledbetter felt the “tangible, concrete effects”

of her performance evaluations each time an evaluation

resulted in the award of a less-than-desired salary increase,

which would have occurred within the same performance

year. Once Ledbetter became aware of this “tangible,

concrete harm,” she should have promptly (within 180 days)

filed a charge with the EEOC. Ledbetter failed to do this,

instead choosing to wait until the end of her nineteen-year

career with the.company to debate the validity of those

evaluations and the effects on her pay.

Because Ledbetter elected not to file a timely admin-

istrative charge challenging her performance cvaluations

(other than the last one), she has forfeited the right to

challenge those earlier evaluations, even if they had con-

tinuing effects on her pay over the course of her career.

Evans at 558.

C. Because The Facially Discriminatory Salary

Structure At Issue In Bazemore Was A

“Present Violation” Of The Law That Could Be

Challenged “At Any Time,” It Is Distin-

guishable From This Case

Ledbetter attempts to circumvent this Court’s jurisprudence

by arguing that cases involving discriminatory pay are

fundamentally different from cases involving other types of

discrete employment actions (like demotion or discharge)

for the purpose of determining timeliness. In a disparate

pay case, Ledbetter contends, the “unlawful employment

practice” at issue is not the decision to pay someone less, but

the actual payment of a discriminatorily depressed wage, even

if the pay disparity arose from decisions made outside the

limitations period. Pet. Brief at 22-23 (“Title VII prohibits

discrimination ‘with respect to . . . compensation’” [and]

not “with respect to ‘compensation decisions.’”) (citation

omitted). To support her position, Ledbetter removes from

context this Court’s statement in Bazemore v. Friday, 478

U.S. 385 (1986), that “f[eJach week’s paycheck that delivers

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

actionable under Title VII.” /d. at 395. From this she

concludes that “in a disparate pay case, each discriminatory

paycheck constitutes an independent unlawful employment

practice in violation of Title VII, even if it simply implements

a discriminatory pay decision made- outside the limitations

period.” Pet. Brief at 16.

Ledbetter’s reliance on Bazemore is misplaced. In Baze-

more, the employer instituted racially segregated work facil-

ities prior to Title VII’s passage, in which black employees

were paid less than whites under a facially discriminatory pay

structure. Bazemore, 478 U.S. at 394. Although the

employer merged the facilities in 1965, and adjusted the pay

of black employees, pre-Act salary disparities were not fully

~ corrected. /d. at 395. The Fourth Circuit had ruled that

because the pay structure was initiated pre-Act, discrim-

inatory differences in pay did not have to be eliminated post-

Act, and this Court reversed. /d.

The Bazemore case, unlike this one, however, was a

“pattern or practice” claim involving the continued appli-

cation of a facially discriminatory salary structure. The fact

that the employer instituted tk . pay structure pre-Act did not

insulate it from liability post-Act, this Court said, because by

continuing to use a pay structure that admittedly paid

employees differently on the basis of race, it had engaged in a

present violation of Title VII. /d. Accordingly, as the Court

Jater explained in Lorance v. AT&T Technologies, Inc., 490

U.S. 900 (1989) (superseded on other grounds by 42 U.S.C. §

2000e-S(e)(2)), “[eJach week’s paycheck [that] deliver[ed]

less to a black than to a similarly situated white” was

actionable in Bazemore because a facially discriminatory

system “discriminates each time it is applied.” /d. at 913 n.5

(citations and internal quotations omitted), Therefore, it can

be challenged “at any time.” /d. at 913. Indeed, the

Bazemore Court was careful to note, consistent with Evans,

that it was “in no sense giv{ing] legal effect to pre-[Act]

actions,” or acts otherwise not actionable, but instead was

“focuse[d] on the present salary structure.” /d. at 396 n.6.

In Ledbetter’s case, there is no facially discriminatory

salary structure. Nor does she allege that one exists. Rather,

Ledbetter disputes the accuracy of discrete performance

evaluations conducted by different supervisors over a period

of almost two decades and consequentially the effects they

had on her pay. Bazemore is simply inapposite.

Furthermore, Ledbetter’s unique limitations theory is con-

trary to the law of Evans. Virtually all forms of employment

discrimination have some consequential. and to that extent,

continuing effects on their victims. Indeed, were Ledbetter’s

claims proved, she might well be able to show her appraisals

(and resultant pay) have had consequences to her career

extending for years—and possibly even beyond her em-

ployment with Goodyear. But the teaching of this Court’s

decision in Evans unequivocally establishes that continuing

effects alone do not insulate alleged acts of discrimination

from the necessity for timely challenge. By measuring the

80-day time limit from the date of the alleged discriminatory

act, all Title VII plaintiffs are placed on an equal footing.

Ledbetter’s misapplication of Bazemore should be rejected.

_IL. A POLICY THAT PERMITS DISCRIMINATION

PLAINTIFFS TO CHALLENGE CURRENT

PAY, AS OPPOSED TO DECISIONS AFFECT-

ING PAY, WILL EFFECTIVELY ELIMINATE

THE LIMITATIONS PERIOD FOR ALL PAY-

RELATED DECISIONS—IMPOSING AN UN-

DUE BURDEN ON EMPLOYERS TO DEFEND

AGAINST STALE CLAIMS

A. Allowing Pay Discrimination Plaintiffs To

Challenge Current Pay At Any Time, Without

Regard To When Decisions Affecting Their Pay

Were Made, Would Effectively Result In The

Elimination Of A Limitations Period For Any

Pay-Influencing Employment Decision

Inherent in Ledbetter’s misconstruction of Title VII's time

limitation is a perpetuation theory wholly at odds with the

Title VII policy that favors limiting the life of claims.

Congress deliberately restricted the rights of individuals to

raise Title Vil claims when it set the length of the limitations

period. In a related context, this Court cautioned against

disregarding this restriction:

By choosing what are obviously quite short deadlines,

Congress clearly intended to encourage the prompt

processing of all charges of employment discrimination .

. . [Jn a statutory scheme in which Congress carefully

prescribed a series of deadlines measured by numbers of

days—trather than months or years—we may not simply

interject an additional . . . period into the procedural

scheme. We must respect the compromise embodied in

the words chosen by Congress. It is not our place simply

to alter the balance struck by Congress in procedural

statutes by favoring one side or the other in matters of

Statutory construction.

Mohasco Corp. v. Silver, 447 U.S. 807, 825-26 (1980)

(footnote omitted); see also International Union of Elec.

Workers v. Robbins & Myers, Inc., 429 U.S. 229, 240 (1976)

(“Congress has already spoken with respect to what it

considers acceptable delay when it established a 90-day

limitations period, and gave no indication that it considered a

‘slight’ delay followed by 90 days equally acceptable. In

defining Title VII's jurisdictional prerequisites ‘with pre-

cision,’ Congress did not leave to courts the decision as

to which delays might or might not be ‘slight’”) (citation

omitted).*

This Court concluded in Mohasco that in choosing the

length of Title VII's limitations period, Congress inten-

tionally risked leaving some victims of discrimination with-

out a remedy in order to further its goal of precluding stale

claims, stating: “[I}t seems clear that the [limitations] pro-

- Vision to some must have represented a judgment that most

genuine claims of discrimination would be promptly asserted

and that the costs associated with processing and defending

stale or dormant claims outweigh the federal interest in

guaranteeing a remedy to every victim of discrimination.”

447 U.S. at 820. In light of Congress’s decision, this Court

advised: “[I]n the long run, experience teaches that strict

adherence to the procedural requirements specified by the

legislature is the best guarantee of evenhanded administration

of the law.” /d. at 826.

Yet if this Court holds, as Ledbetter asks, that pay

discrimination plaintiffs may challenge their.current pay rate

at any time, regardless of when decisions affecting their pay

were made, the result will be the virtual elimination of a

statute of limitations period for any employment decision that

either directly or indirectly affected the person’s pay.

According to Ledbetter’s logic, for example, an employee

would be able to reach back well beyond the statutory

180/300 day limitations period to challenge the denial of a

* The 1972 amendments to Title VII enlarged the limitations period to

180 days. (codified as amended at 42 U.S.C. § 2000e-5(e)).

training opportunity or more challenging work assignments if,

as a result of the denial, the employee received a smaller pay

increase that year. Likewise, an employee could do as

Ledbetter has done and wait almost two decades to challenge

a performance appraisal that formed the basis of a merit-

based raise decision.

Even if the employee believed the pay-influencing em-

ployment action was discriminatory at the time it occurred (as

Ledbetter did at the time she received her appraisals), she

could remain silent without sacrificing her claims. The

employer would not have any inkling during the employee’s

career of the perception of discrimination, but it still would

have to defend each employment action many years after it

occurred. In other words, the mere issuance of a paycheck

would “open{] the door for a full inquiry into the motivations

of every person who ever made a decision contributing to the

[employee’s] pay level.” Pet. App. 22a.

B. Exempting Pay Discrimination Plaintiffs From

The Congressionally-Mandated Statute Of

Limitations Period Would Impose An Undue

Burden On Employers To Defend Against Stale

Claims

Employers must be permitted to operate without the

constant pressure that flows from the uncertainty over

whether they will have to defend past employment decisions -

against challenges in the distant future. The purpose of

statutes of limitations is to avoid precisely the prejudice to

employers that results from defending stale claims. Indeed,

they are “designed to assure fairness to defendants” and to

“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.” Burnett v. New York Cent. R.R., 380 U.S. 424,

428 (1965) (citation omitted). The interest of an individual

who fails to undertake the “minimal” step of filing a charge to

preserve his Title VII claim must, therefore, give way to the

interest of avoiding stale claims. See Ricks, 449 U.S. at 256-

57 (“[t]he limitations periods, while guaranteeing the protec-

tion of the civil rights laws to those who promptly assert their

rights, also protect employers from the burden of defending

claims arising from employment decisions that are long past”)

(citations omitted); Johnson v. Railway Express Agency, Inc.,

421 U.S. 454, 463-64 (1975) (“the length of the period

allowed for instituting suit inevitably reflects a value judg-

ment concerning the point at which the interests in favor of

protecting valid claims are outweighed by the interests in

prohibiting the prosecution of stale ones”).

Even the EEOC recognized the right of employers to some

measure of finality when it set the retention period for

employers to keep certain personnel and employment records

under Title VII at one year from the date the record is made

or the personnel action involved occurs, whichever is later,

unless a charge has been filed. 29 C.F.R. § 1602.14. The

One-year retention period means employers will not destroy

relevant documents as part of routine file maintenance before

an individual has had the opportunity to file a charge of

discrimination with the EEOC. Because Title VII gives some

aggrieved individuals up to 300 days from the date of the

allegedly discriminatory event to file such a charge, an

cmployer will know whether a particular employment action

is the subject of a charge before it destroys any relevant

documents.

Expanding the limitations period well beyond 300 days in

cases involving alleged pay discrimination, as Ledbetter

essentially asks this court to do, will severely prejudice

employers who reasonably have relied on the regulation

lawfully to destroy relevant documents. The employer will

not have any documents to support pay decisions it took more

than one year ago, which will hamper drastically its ability to

defend itself against a subsequent pay discrimination claim.

Moreover, going forward, such a ruling would effectively

require employers to save all employment records forever,

because they would not be able to anticipate which employ-

ment decisions would generate pay discrimination charges or

when. This response, however, places an undue burden on

the employer and is one the EEOC expressly rejected by

limiting Title VII’s recordkeeping requirements to one year,

unless a charge has been filed.

This Court should reject Ledbetter’s plea to unravel the

very important protection Title VII’s statute of limitations

affords employers against stale claims.

CONCLUSION

For the foregoing reasons, the decision of the court of

appeals should be affirmed.

Respectfully submitted,