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

No. 05-1074

IN THE

Supreme Court of the United States

LILLY M. LEDBETTER,

Petitioner,

Vv.

GOODYEAR TIRE & RUBBER COMPANY, INC.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

- for the Eleventh Circuit

BRIEF OF THE NATIONAL PARTNERSHIP FOR

WOMEN & FAMILIES ET AL. AS AMICI CURIAE

IN SUPPORT OF PETITIONER

DEBORAH L. BRAKE JUDITH L. LICHTMAN

Professor of Law JOCELYN C. FRYE *

UNIVERSITY OF PITTSBURGH NATIONAL PARTNERSHIP FOR

SCHOOL OF LAW WOMEN & FAMILIES

3900 Forbes Avenue 1875 Conn. Ave., NW, Ste. 650

Pittsburgh, PA 15260 Washington, DC 20009

JOANNA L. GROSSMAN (202) 986-2600

Professor of Law MARCIA D. GREENBERGER

HOFSTRA LAW SCHOOL JOCELYN SAMUELS

121 Hofstra University DINA R. LASSOW

Hempstead, NY 11549 NATIONAL WOMEN’S LAW CENTER

11 Dupont Circle, NW, Ste. 800

* Counsel of Record Washington, DC 20036

August 31, 2006

(Additional Amici Listed on Inside Cover)

WiILSON-EPES PRINTING CO., INC. — (202) 789-0096 ~ WASHINGTON, D.C. 20001

ADDITIONAL AMICI CURIAE

9t05, National Association of Working Women

American Association of University Women

American Civil Liberties Union

Coalition of Labor Union Women

Connecticut Wemen’s Education & Legal Fund

Equal Rights Advocates

Feminist Majority Foundation

HADASSAH

Legal Momentum

MANA National Latina Organization

National Asian Pacific American Women’s Forum

National Association of Social Workers

National Council of Women’s Organizations

National Organization for Women Foundation

National Women’s Law Center

Northwest Women’s Law Center

Pick Up the Pace

The Women’s Law Center of Maryland

Wider Opportunities for Women

Women Employed

Women’s Advocacy Project, Inc.

Women’s Bar Association of the District of Columbia

Women’s Law Project

QUESTION PRESENTED

Whether and under what circumstances a plaintiff may

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

1964 alleging illegal pay discrimination when the disparate

pay is received during the statutory limitations period, but is

the result of intentionally discriminatory pay decisions that

occurred outside the limitations period.

Fm |

ey

he ee

4

’

‘sy “)

— So? a

Ro Pe oe

Ms

gat ovis Vee ens

TABLE OF CONTENTS

BERS GP PF TRIE BOI oc ecccecscasccessccnvncvesecseetveccsssee

INTEREST OF AMICI CURIAE............s.scsesesseseseressseees

SUMMARY OF ARGUMENT................:cccscessessseeseeenes

PTT cvitinininhininitnisteissiniguaspbanapninicedineniasiinanmucinenios

I.

II.

THE RULING BELOW IGNORES THE

REALITIES OF PAY DISCRIMINATION......

A. Pay Discrimination Remains an Intractable

Problem for Women in the Workplace........

B. The Court Below Disregarded the Cumu-

lative Nature of Pay Discrimination. ............

THE RULING BELOW SADDLES EM-

PLOYEES WITH UNREALISTIC BUR-

DENS AND CREATES INCENTIVES FOR

EMPLOYERS THAT ARE INCONSISTENT

PEE ANE WU setcasirstccninnmnsaesnccienisesiniscenoubiens

A. The Decision Below Disregards the Dif-

ficulties Employees Face in Challenging

FR NI IIUOD esticcencinsnnsniicsiniaibitndniisntniesens

1. The Eleventh Circuit’s Ruling is In-

compatible with the Realities of How

Women Perceive and Respond to

ITI ccnniccnsncisentstonmsincituinsiaapindses

2. Pay Discrimination That Begins When

an Employee is Hired is Especially

Difficult to Reach Under the Ruling

(iii)

10

10

10

14

iv

TABLE OF CONTENTS—Continued

Page

3. The Possible Applicability of a Dis-

covery Rule Does Not Adequately

Address These Problems ..............-.+-++++ 16

4. The Eleventh Circuit Rule Pressures

Plaintiffs to File First and Ask Ques-

| OTM EE Rade ES 18

B. The Decision Below Discourages Volun-

tary Compliance and Invites Subterfuge ..... 19

lif, THE DECISION BELOW CONTRAVENES

TITLE VII’S LANGUAGE AND INTENT...... 22

A. The “Unlawful Employment Practice” is

the Discriminatory Paycheck, Not the

SETI CIN icscncctnesiscnaninenieiisnnnadbciines 22

B. Title VII’s Allowance of Up to Two

Years’ Backpay Must Mean That a Plain-

tiff Can Challenge Pay Discrimination

Traceable to Decisions Made Before the

SERIIID FOIIING cccsciscscovincsantniisnsresndinnatainn 24

C. The Court Below Disregarded Congress’

Intent in Enacting the Civil Rights Act of

POOPY civchginessineviion Siccsiiinidmtiieiiianadaaae 28

Vv

TABLE OF AUTHORITIES

CASES Page

Albemarle Paper Co. v. Moody, 422 U.S. 405

ITT cireseendsintiniciensticiaenaeniniemmentensestnsdneapstatanaiataen passim

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

IT inthhathietsipeliiteanelbainianaeaitsianieuniidatenaeaialiatatats 20

Anderson v. Zubieta, 180 F.3d 329 (D.C. Cir.

iI irritesiateiatarilndecessncigntideniaiiatanesaidaenagabennatiinionines 27

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

Bereda v. Pickering Creek Indus. Park, Inc., 865

ST EIPTIING STII inriitcnniacnnshasieetmpantnndansioteeia 27

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742

rid acecidiiisianiinudhiiapeniehimastanieneieadieiiadnennenie 20

Clark County Sch. Dist. v. Breeden, 532 U.S. 268

AE ee er 21

County of Washington, Oregon v. Gunther, 452

TEI ane eae ee 22, 28

Faragher v. City of Boca Raton, 524 U.S. 775

II shesiciihaishiiehipendnisipcieiasablineibaneneeameinictiogibensiebeteiens 21, 23

Forsythe v. Fed'n Empl. & Guidance Serv., 409

ee ED Ce Ga BD cncencccciscccsstecsncnssneneuscesee 26

Futran v. Ring Radio Co., 501 F. Supp. 734

I oli taenindartnetesenendinmnnianeionenas 14

Glenn v. General Motors Corp., 841 F.2d 1567

(11th Cir.), cert. denied, 488 U.S. 948 (1988)... 14

Goodwin v. General Motors Corp., 275 F.3d

1005 (10th Cir.), cert. denied, 537 U.S. 941

EER na ee ae 15, 27

Hamilton v. lst Source Bank, 928 F.2d 86 (4th

EE Ea Re ee a 17

Harris v. Forklift Systems, Inc., 510 U.S. 17

See 23

Inglis v. Buena Vista Univ., 235 F. Supp. 2d 1009

EEE A Ree 17

vi

TABLE OF AUTHORITIES—Continued

Page

Int'l Union v. Johnson Controls, Inc., 499 U.S.

a a ncicerethoctedistisieietiitahasesicasiala iia ibitahines 23

Int'l Union of Elec. Workers v. Robbins &

Myers, Inc., 429 U.S. 229 (1976) .........cccceeseeees 19

Kolstad v. Am. Dental Assoc., 527 U.S. $26

Eee hiepiieinsincinciatetecaiensinniimsiittnenciniesianitasipeiaisisiaasibiasitline 24

Kouba v. Allstate Ins. Co., 691 F.2d 873 (9th Cir.

Suni sieptinesicineieeaiaeesiatpinnndajeshiemsienibicinnaiiddipiialenasineattaliasit 14

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

ee licicchiiciinimrectabennnchidapitaianicmniaiiacmmeass 3, 28, 29

Lovell v. BBNT Solutions, LLC, 299 F. Supp. 2d

Sa CAs UA ATE iecipctnvethinsiameagsiennainiemestiansintaente 27

McMillan v. Mass. Soc'y for the Prevention of

Cruelty to Animals, 140 F.3d 288 (lst Cir.

Sia iceisseiiaiiphteetainettaealniatadit ttt iii 15

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57

TnI iecseissitliahindinssitebcipinnetristinsiianiglecasedidninahiiain tinea 25

Merrill v. S. Methodist Univ., 806 F.2d 600 (Sth

eas SUI ais hcesiniasieriiseinsecninsiesidicithillanbetiatieretiitaeiite 27

Mohasco Corp. v. Silver, 447 U.S. 807 (1980) ..... 19

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

hs Oe GI ccrtnencenetesintssnitalsccncnaiennindinteaasientiions passim

Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721

i vtidecnldiasiscnivintnentinaninctiniiesionabniidibensesinnn 6

Oncale v. Sundowner Offshore Servs., Inc., 523

ee Pee iaicensenssnancicmsinicisiasitinintaaitaeaiiatehanintaiaaion 22

Oshiver v. Levin, 38 F.3d 1380 (3d Cir. 1994)...... 17

Pennsylvania State Police v. Suders, 542 U.S.

ne ela citiiidcriinionnsiiniesinniniadiatiahniaitiisiteneintiaitivits 25

Sabree v. United Bhd. of Carpenters, 921 F.2d

Lt eee ween 25

Shea v. Rice, 409 F.3d 448 (D.C. Cir. 2005).......... 26

Vil

TABLE OF AUTHORITIES—Continued

Page

Tomita v. Univ. of Kan. Med. Ctr., 227 F. Supp.

yr pit 4 00 27

STATUTES

Age Discrimination in Employment Act of 1967,

rT oe 17

Se ee FOE Oe Fe ccrccccceniteniittntentiensintenmnsenn passim

42 U.S.C. § 2000e-5(e)(2) (2000)... ee eeeeeeeees 29

Equal Pay Act of 1963, 29 U.S.C. 206(d) ............. 14

Title VII of the Civil Rights Act of 1964 .............. passim

42 U.S.C. § 2000e-5(e)(1) (2000)... cece eee 22

42 U.S.C. §2000e-5(g)(1) (2000)... eeeeeeeeeee passim

OTHER AUTHORITIES

Amy Caiazza et al., Institute for Women’s Policy

Research, The Status of Women in the States,

Women’s Economic Status in the States: Wide

Disparities by Race, Ethnicity, and Region

KS eee ee a TN 4

Arthur Larson, Employment Discrimination

ey ee See 16

Barry Gerhart, Gender Discrimination in Current

and Starting Salaries: The Role of Perform-

ance, College Major and Job Title, 43 Indus.

& Lab. Rel. Rev. 418 (1990)... eee eeeeeee 14

Boeing Agrees to Pay $4.5 Million as Bias

Settlement, L.A. Times, Nov. 20, 1999, at C1... 6

Brenda Major & Cheryl R. Kaiser, Perceiving

and Claiming Discrimination, in The Hand-

book of Research on Employment Discrim-

ination: Rights and Realities 279 (Laura Beth

Nielsen & Robert L. Nelson, eds., 2006) ..11, 12, 13, 16

Vill

TABLE OF AUTHORITIES—Continued

Bureau of Labor Statistics, U.S. Department of

Labor, Highlights of Women’s Earnings in

I: IID wiciciscrscesnatniietiitnienapeetenpnipinghines

Charles A. Sullivan et al., Employment

Discrimination, §11.5 (1988) ...........:cccccceeeeeeeees

Cheryl R. Kaiser & Brenda Major, A Social

Psychological Perspective on Perceiving and

Reporting Discrimination, 31 Law & Soc.

Inquiry (forthcoming Nov. 2006).................. ll,

Congressional Record, 137 Cong. Rec. $15483

PR Be | eee

Council of Economic Advisers, Explaining

Trends in the Gender Wage Gap (1998) ...........

Daniel H. Weinberg, U.S. Dep’t of Commerce,

Census 2000 Special Reports, Evidence from

Census 2000 About Earnings by Detailed Oc-

cupation for Men and Women (May 2004) .......

Deborah L. Brake, Retaliation, 90 Minn. L. Rev.

SSE TEES 11,

Douglas Laycock, Continuing Violations, Dis-

parate Impact in Compensation, and Other

Title VII Issues, 49 Law & Contemp. Probs. 53

ED BE teceniccrnincinicapeancncteisiniacipareniinenbiate

Exec. Order No. 11,246, 3 C.F.R. 339 (1964-

1965), reprinted as amended in 42 U.S.C.

IE CIID soctscirencnendensenssinnnstetnstnccsinindscntetanaiatioe

Francine D. Blau et al., The Economics of

Women, Men, and Work (Sth ed. 2006).............

H.R. Rep. No. 101-644 (1990):

i eessnscneebscensileietiahibenleeniainiapinageeiecgnadinteaniainigeeieis

Page

12, 13

29

13, 16

26

30

30

ix

TABLE OF AUTHORITIES—Continued

Page

H.R. Rep. No. 102-40 (1) (1991) oo... cceeesceeeeeeneees 29

Pa Fe ceihseidinicistebnniintintiterannsttassncanenemeapmemsttnaniiintanienets 30

ad diicticithibisininnpeinitbanmerdninsnmmacimennitindiieniindiods 30

Jeanne M. Hamburg, Note, When Prior Pay Isn't

Equal Pay: A Proposed Standard for the

Identification of “Factors Other Than Sex”

Under the Equal Pay Act, 89 Colum. L. Rev.

ne iacinisisscntinsininadinsnintasnicinibinbiiaiinsiatapabiihiin 14

Joanna L. Grossman, The Culture of Compli-

ance: The Final Triumph of Form Over Sub-

stance in Sexual Harassment Law, 26 Harv.

Cg | ES ES eee 13

Kostas G. Mavromaras & Helmut Rudolph,

Wage Discrimination in the Reemployment

Process, 32 J. Hum. Resources 812 (1997)....... 14

Leonard Bierman & Rafael Gely, “Love, Sex and

Politics? Sure. Salary? No Way”: Workplace

Social Norms and the Law, 25 Berkeley J.

Emp. & Labor L. 167 (2004) 00.0.0... eeeeeee 11, 12,19

Linda Babcock & Sara Laschever, Women Don't

Ask: Negotiation and the Gender Divide

Sei dctenninisecselepbicinsieveamimnajampnaunnehiaenniatinttieiel 7,8

Michael Selmi, Family Leave and the Gender

Wage Gap, 78 N.C. L. Rev. 707 (2000)............ 4, 5,6

Michelle J. Budig, Male Advantage and the

Gender Composition of Jobs: Who Rides the

Glass Escalator, 49 Soc. Prob. 258 (2002)....... 6

Richard W. Stevenson, Texaco is Said to Set

Payment Over Sex Bias, N.Y. Times, Jan. 6,

x

TABLE OF AUTHORITIES—Continued

=

Stephen J. Rose & Heidi J. Hartmann, Inst. for

Women’s Policy Research, Still a Man’s

Labor Market: The Long-Term Earnings Gap

U.S. Gen. Acct. Office, Women’s Earnings:

Work Patterns Partially Explain Difference

Between Men's and Women’s Earnings, GAO-

PP, CIID cccadlindesnsntssncsesndcccsnbinitieniaiaimate

Virginia Valian, Why So Slow?: The Advance-

ment of Women (1998)....s0-00 scessessnece

_ Page

INTEREST OF AMICI CURIAE

Amici curiae are twenty-four organizations that share a

longstanding commitment to civil rights and equality in the

workplace for all Americans. Statements of interest for the

individual organizations are attached in the Appendix.’

SUMMARY OF ARGUMENT

Under the ruling below, an employee cannot challenge pay

discrimination resulting from any decisions made before the

most recent pay decision prior to the 180-day limitations

period under Title VII of the Civil Rights Act of 1964. This

represents a stark and abrupt change in the law. C/

Bazemore v. Friday, 478 U.S. 385, 395-96 (1986) (Brennan,

J., concurring) (“Each week’s paycheck that delivers less to a

black than 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.”). As even the

Eleventh Circuit acknowledged, Bazemore was widely

understood to permit a plaintiff to challenge ongoing pay

discrimination, regardless of how far back the decision to

discriminate was made. Pet. App. 20a-22a n.17. Contrary to

the view of the court below, this Court’s decision in National

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

fully supports this understanding of Bazemore.

The Eleventh Circuit’s ruling can only aggravate the

longstanding gender wage gap. To this day, women earn less

than men in virtually every occupation and job category, at

every age and stage in the employment lifecycle, and for

every hour worked. The wage gap expands over the course of

a woman’s working life, with serious economic conse-

quences. Pay discrimination is responsible for a significant

' Letters of consent are on file with the Clerk. No counsel for cither

party has authored any portion of this brief, nor has any person or entity,

other than amici and their counsel, made a monetary contribution to the

preparation or submission of this brief.

2

portion of this gap, and Title VII must be construed broadly

and fairly in order to effectively combat it.

The Eleventh Circuit’s untethering of discriminatory pay

decisions from the subsequent paychecks that implement

them is contrary to the way in which typical employers set

and review wages. By not permitting employees to challenge

pay decisions that continue to affect their paychecks, the

court below has created a safe harbor for pay discrimination

to persist and grow over time.

The ruling below improperly imposes overwhelming bur-

dens on the victims of pay discrimination. Pay discrimination

is rarely accompanied by overt bias, and employee salaries

are notoriously cloaked in secrecy. Victims thus have dif-

ficulty perceiving pay discrimination and, in any event, are

unlikely to promptly complain about it. These difficulties are

compounded for employees subjected to discrimination in

their starting salaries, when much pay discrimination begins.

A discovery rule, although appropriate for Title VII claims

generally, would do little to alleviate these concerns and

would tum virtually every pay discrimination case into a

messy factual dispute over what the plaintiff knew and when.

Employees governed by the’ lower court’s ruling will face

undue pressure to file first and ask questions later in order to

preserve their Title VII rights.

At the same time, the decision below undermines the

incentives for employers to prevent and correct pay discrim-

ination. Because this ruling grandfathers in pre-existing pay

discrimination, it creates little incentive for employers to find

and correct pay disparities between male and female workers.

Instead, it encourages employers to conduct periodic pro

forma salary reviews so as to insulate prior discriminatory

decisions from challenge.

Title VII’s language and intent foreclose the rule adopted

by the court below in three respects. First, Title VI] makes an

unlawful employment practice the trigger for the limitations

period. In a pay discrimination case, the unlawful employ-

3

ment practice is the payment to an employee of less money

because of her sex. Consequently, any discriminatory pay-

check received within the limitations period is actionable,

regardless of when the decision to pay the plaintiff a

discriminatory salary first was made. Second, Title VII

allows for up to two years’ backpay from the date of filing a

charge—a provision which would make little sense unless a

plaintiff could challenge pay discrimination that begins prior

to and continues into the limitations period. Finally, the Civil

Rights Act of 1991, which overturned this Court’s decision in

Lorance v. AT&T Technologies, Inc., 490 U.S. 900 (1989),

clearly reflects Congress’ intention that Title VII reach the

current implementation of prior discriminatory decisions.

ARGUMENT

I. THE RULING BELOW IGNORES THE REALI-

TIES OF PAY DISCRIMINATION.

A. Pay Discrimination Remains an _ Intractable

Problem for Women in the Workplace.

The gender-based wage gap in the United States is per-

sistent and well-documented. Although researchers disagree

about the size of the gap, almost all agree that it exists and is

significant.

Current estimates of the gender wage gap hover between

seventy and eighty percent—meaning that a woman, on

average, earns seventy to eighty cents for every dollar earned

by a man. See Bureau of Labor Statistics, U.S. Dep’t of

Labor, Highlights of Women’s Earnings in 2003, at 29 tbl. 12,

31 tbl. 14 (Sept. 2004) (reporting that women’s median

weekly earnings were 79.5% of men’s in 2003, but only

73.6% for college graduates). The pay gap is especially

pronounced for African American women and- Hispanic or

Latino women, who earn even less on the dollar compared to

white men. See id. at 3 cht. 2 (reporting median usual weekly

earnings of $715 for white men, $567 for white women, $491

4

for black or African American women, and $410 for Hispanic

or Latino women); cf’ Amy Caiazza et al., Inst. for Women’s

Pol’y Res., The Status of Women in the States, Women’s

Economic Status in the States: Wide Disparities by Race,

Ethnicity, and Region 24-25 (Apr. 2004) (finding wide

variation in Asian American women’s wages). Although the

gender wage gap today is narrower than the 1970s measure of

fifty-nine cents on the dollar, the bulk of the change occurred

during the 1980s, and studies show little additional progress

since 1990. See Michael Selmi, Family Leave and the

Gender Wage Gap, 78 N.C. L. Rev. 707, 715 (2000).

The gender wage gap exists at every level of earnings. See,

e.g., Daniel H. Weinberg, U.S. Dep’t of Commerce, Census

2000 Special Reports, Evidence from Census 2000 About

Earnings by Detailed Occupation for Men and Women 7

(May 2004).* Moreover, the disparity in men’s and women’s

wages extends, with some variation, throughout the employ-

ment lifecycle. Women in their 40s and 50s earn salaries

more disparate from their male counterparts than do women

at the beginning of their careers. See, e.g., Bureau of Labor

Statistics, supra, at 11 tbl. 1 (finding, based on data from the

Current Population Survey, that women ages 45-54 earn 73%

of what men earn, while women ages 25-34 earn 87% of what

men earn); Francine D. Blau et al., The Economics of Women,

Men, and Work 150 (Sth _ed.2006) (“women earn less than

men in all age categories,” and the ratio of women’s earnings

to men’s decreases as they age). When earnings over a longer

* The gap is largest at the top of the earings spectrum. For example,

“Physicians and Surgeons” is the highest paid occupational category for

both sexes, yet the female median ($88,000) is only 63% of the male

median ($140,000). See Weinberg, supra, at 12 tbl. 5. The wage gap

remains significant at the bottom of the earnings spectrum, however,

especially since the effect of real-dollar differences may be felt most

acutely by lower-wage workers. See id. at 13 tbl. 6 (citing example of

“Teacher assistants,” a lower-paid occupation, where the female median,

$15,000, is 75% of the male median of $20,000).

5

neriod of time are aggregated, the gap is even starker. In their

prime earning years, women earn only 38 percent of what

men earn over a 15-year period. See Stephen J. Rose & Heidi

I. Hartmann, Inst. for Women’s Pol’y Res., Still a Man's

Labor Market: The Long-Term Earnings Gap 9 (2004).

Discrimination accounts for a significant part of the wage

gap. Although there are plausible nondiscriminatory reasons

for pay differences between men and women, none of them,

even in the aggregate, explains the entire gap. See Selmi,

supra, at 719-43 (reviewing data). For example, part of the

wage gap is sometimes attributed to differing degrees of labor

force attachment between men and women. Yet, women who

work year-round and full-time during at least 12 of 15

consecutive years earn only 64 percent of what men with a

similar attachment to the labor force earn. See Rose &

Hartmann, supra, at 10.

Differences in the number of hours worked also fail to

explain the gender disparity in wages. Hour-for-hour, women

earn less than men. See Bureau of Labor Statistics, supra, at

2, 25 tbl. 9, 26 tbl. 10, 35-36 tbl. 15, 37-36 tbl. 16 (reporting

that among hourly workers, the median hourly wage for

women is 85% of the median hourly wage for men).

Similarly, differences in education explain little of the wage

gap. According to 2000 Census data, the “only women aged

35-54 to earn more than 71.4 percent of men at the median

are those with some college education, but only a bit more,

72.1 percent.” Weinberg, supra, at 14, 15 tbl. 9.

Most importantly, when studies simultaneously control for

multiple variables such as education, occupation, hours

worked, and time away from the workplace because of family

care responsibilities, a significant gender gap remains. See,

e.g., U.S. Gen. Acct. Office, Women’s Earnings: Work

Patterns Partially Explain Difference Between Men’s and

Women's Earnings, GAO-04-35 at 2 (Oct. 2003) (examining

nationally representative longitudinal data set and concluding

that women in 2000 earned only 80% of what men earned

6

even after accounting for differing work patterns and other

“key factors”); Weinberg, supra, at 21 (“There is a substantial

gap in median earnings between men and women that is

unexplained, even after controlling for work experience . .\.

education, and occupation.”); Council of Econ. Advisers, Ex-

plaining Trends in the Gender Wage Gap 11 (1998) (con-

cluding that women do not earn equal pay even when

controlling for occupation, age, experience, and education);

Michelle J. Budig, Male Advantage and the Gender Com-

position of Jobs: Who Rides the Glass Escalator, 49 Soc.

Prob. 258, 269-70 (2002) (explaining that men are advan-

taged, net of control factors, in both pay leveis and wage

growth regardless of the gender composition of jobs).

While debate continues over how much of the gender wage

gap is explained by discrimination, clearly some employers

continue to practice pay discrimination. For example, em-

ployers penalize women for expected leave-taking out of

proportion to the patterns many women actually follow. See

Selmi, supra, at 745-50; cf Nev. Dep't of Human Res. v.

Hibbs, 538 U.S. 721, 730 (2003) (discussing employer

reliance on “stereotype-based beliefs about the allocation of

family duties” as a form of sex discrimination). There is also

a well-documented “wage premium” for married men, but not~

for married women, and a wage penalty of 10-15% for

women who have children. See Selmi, supra, at 726. Major

U.S. corporations have settled multi-million dollar lawsuits

for pay discrimination in recent years. Sée, e.g., Richard W.

Stevenson, Texaco is Said to Set Payment Over Sex Bias,

N.Y. Times, Jan. 6, 1999, at Cl; Boeing Agrees to Pay $4.5

Million as Bias Settlement, L.A. Times, Nov. 20, 1999, at C1.

Thus, despite modest progress in narrowing the wage gap,

sex discrimination in compensation persists, and the need for

strong protection under Title VII is as great as ever.

7

B. The Court Below Disregarded the Cumulative

Nature of Pay Discrimination.

The Eleventh Circuit ruled that to challenge current

discrimination in pay, a plaintiff can reach no farther back

than (and perhaps not even as far as) the pay decision

immediately preceding the charge-filing period. Pet. App.

14a. This approach, which treats each pay decision as

- severable from preceding decisions about an empioyee’s

salary, belies the realities of wage discrimination and can

only exacerbate the gender wage gap.

-Like most employers, Respondent Goodyear Tire and Rub-

ber Company (“Goodyear”) sets an employee’s initial salary

and then periodically determines whether to award a per-

centage-based increase.’ Left uncorrected, even a relatively

minor initial pay disparity will expand exponentially over an

employee’s career, even if subsequent raises are determined

in a nondiscriminatory fashion. Moreover, under most per-

formance review systems, there is little room to correct a

discriminatory current salary. Goodyear’s raises, for exam-

ple, were subject to both individual and group caps. Pet.

_ App. 6a. Thus, once a discriminatory pay rate is set, it is

likely to continue throughout an employee’s tenure with that

employer, and perhaps even provide the basis for determining

a starting salary with a subsequent employer.

Illustrating this effect, a study at Carnegie Mellon Uni-

versity found that male students who graduated with a mas-

ter’s degree earned starting salaries 7.6% higher than their

female counterparts, for an average annual salary difference

of almost $4,000. See Linda Babcock & Sara Laschever,

Women Don't. Ask: Negotiation and the Gender Divide |

> Although the Eleventh Circuit stated that Goodyear “annually reviews

and reestablishes employee salary levels,” Pet. App. 2a, the record clearly

reflects that periodic reviews were confined to a determination of whether

to augment an employee's existing salary with a modest percentage-based

increase based on performance. Pet. 4 n.5; Pet. Rep. 2-3 n.1.

8

(2003). Using standard assumptions, the authors explained

how a relatively modest disparity generates “sobering results”

by the end of a career. /d. at 5. In their example, if a 22-

year-old man received a starting salary of $30,000, and an

equally qualified 22-year-old woman received a starting

salary of $25,000, assuming each received identical 3%

annual raises, the gap would widen from $5,000 to $15,000

annually by the time they reached age 60. Jd. The sum total

of the difference would rise to a whopping $361,171 over the

woman’s employment life, and a staggering $568,834 by age

60, if the man earned 3% annual! interest on the difference.

Id.; see also Virginia Valian, Why So Slow?: The Advance-

ment of Women 3 (1998) (“Very sn.all differences in treat-

ment can, as they pile up, result in large disparities in salary,

promotion, and prestige.”).

By treating each pay decision as severable from the

paychecks that follow, the Eleventh Circuit disregarded the

cumulative nature of pay discrimination and misapplied this

Court’s decision in National Railroad Passenger Corp. v.

Morgan, 536 U.S. 101 (2002). In that case, this Court held

that “discrete” decisions such as hiring, firing, promotion,

demotion, and transfer trigger Title VII’s limitations’ period.

The Court rejected a continuing violation theory for such

claims, which would have permitted plaintiffs to challenge

discrete acts outside the limitations period if they were

“sufficiently related” to timely acts. /d. at 114.

Nothing in this Court’s decision in Morgan supports the

Eleventh Circuit’s ruling. Discriminatory paychecks are not

actionable simply because they are “sufficiently related” to a

pay decision that occurred outside the limitations period. /d.

at 114. They are actionable because they pay less money to,

an employee because of sex. The court below impropertly

applied Morgan by treating the decision to pay an employee

less because of sex——as opposed to the paychecks ‘imple-

menting that decision—as the event that triggers thie limita-

tions period, cutting off the employee’s ability to challenge

9

subsequent paychecks implementing that decision. That

ruling flatly disregards this Court’s recognition in Bazemore,

cited with approval in Morgan, 536 U.S. at 111-12, that each

discriminatory paycheck is actionable, regardless of when the

decision to discriminate in pay first occurred. See Bazemore,

478 U.S. at 395-96 (deeming this point “too obvious to

warrant extended discussion’’).

The Eleventh Circuit’s ruling ignores these realities of pay

discrimination. Unlike a discriminatory termination, the deci-

sion to pay a woman a lower salary because of sex is not a

time-limited act that is severable from the paychecks that

implement that decision. When an employee is fired for a

discriminatory reason, the firing will undoubtedly have a pro-

longed negative effect on the employee. But the discrim-

ination itself has concluded, and the time to complain begins

to run. Morgan, 536 U.S. at 112-13. Not so for pay dis-

crimination. Rather than being able to begin the process of

recovery, a victim of pay discrimination continues to

experience the discrimination, not just its effects, with each

new paycheck. As the time from the original discriminatory

decision grows more distant, the discrimination deficit grows

larger. The original decision to pay a woman less because of

her sex is, in effect, a policy of discrimination that is carried

out paycheck by paycheck, each one of which contains less

money for an illegal reason. Left uncorrected, each sub-

sequent paycheck implements the discriminatory decision and

brings it to bear anew on the employee.

With the decision below, the Eleventh Circuit has created a

safe harbor for employers to watch a discriminatory pay rate

grow over time without fear of liability. While many factors

may contribute to the gender wage gap, the ruling below will

only exacerbate that part of the problem that is attributable to

pay discrimination.

10

Il. THE RULING BELOW SADDLES EMPLOY-

EES WITH UNREALISTIC BURDENS AND

CREATES INCENTIVES FOR EMPLOYERS

THAT ARE INCONSISTENT WITH TITLE VIL.

The rule adopted by the court below is fundamentally

inconsistent with the twin goals of Title VII: preventing

discrimination and compensating its victims. See Albemarle

Paper Co. v. Moody, 422 U.S. 405, 421 (1975). It imposes

inordinate burdens on employees who experience pay dis-

crimination and creates perverse incentives for employers not

to correct it.

A. The Decision Below Disregards the Difficul-

ties Employees Face in Challenging Pay

Discrimination.

The decision below places an untenable burden on em-

ployees to complain shortly after the first salary decision that

results in a discriminatory paycheck or forever lose the right

to challenge any resulting disparities in pay. Given the reality

of how employees perceive and respond to pay discrimina-

tion, very few will be able to comply with the Eleventh

Circuit’s rule. Employees who are subjected to pay discrim-

ination at the time they are first hired face an especially unfair

predicament. Contrary to the assumption of the court below,

the possibility of equitable tolling principles, including a

discovery rule, does not solve these difficulties. Because it

radically departs from how employees experience pay dis-

crimination, the Eleventh Circuit’s interpretation, if allowed

to stand, would effectively immunize the vast majority of pay

discrimination from Title VII challenge. _

1. The Eleventh Circuit's Ruling is Incompatible

with the Realities of How Women Perceive and

Respond to Discrimination.

The Eleventh Circuit’s rule places the burden on the

employee to quickly discern and challenge each discrim-

11

inatory pay decision before her next salary review, however

cursory, wipes the slate clean. The court’s ruling flatly

ignores real life experience with discrimination on two fronts:

how people recognize that they have been discriminated

against and how they choose to respond.

It is well-documented that victims of discrimination rarely

recognize immediately that they have experienced discrim-

ination. Researchers in the field of social psychology have

documented a “minimization bias” in which the targets of

discrimination resist perceiving and acknowledging it as such,

even when they experience behavior that objectively qualifies

as discrimination. See Deborah L. Brake, Retaliation, 90

Minn. L. Rev. 18, 25-28 (2005) (summarizing social science

research). These attribution errors are especially likely when

discrimination is masked and not obvious, leading victims to

downplay the likelihood of discrimination and attribute

negative outcomes to other causes. See Cheryl R. Kaiser &

Brenda Major, A Social Psychological Perspective on Per-

ceiving and Reporting Discrimination, 31 Law & Soc.

Inquiry (forthcoming Nov. 2006) (manuscript at 9, on file

with authors); Brenda Major & Cheryl R. Kaiser, Perceiving

and Claiming Discrimination, in The Handbook of Research

on Employment Discrimination: Rights and Realities 279,

285-87 (Laura Beth Nielsen & Robert L. Nelson, eds., 2006).

Although the minimization bias and the difficulty perceiv-

ing discrimination are not specific to pay discrimination,

victims of pay discrimination are especially susceptible to

these attribution errors. One difficulty is the lack of trans-

parency in employee compensation systems and a code of

silence governing workplace salaries. While the results of

hiring, firing, promotion, demotion and transfer decisions are

generally commonly known and discussed, employee com-

pensation is typically hidden under a veil of secrecy. See,

e.g., Leonard Bierman & Rafael Gely, “Love, Sex and

Politics? Sure. Salary? No Way”: Workplace Social Norms

and the Law, 25 Berkeley J. Emp. & Labor L. 167, 168, 171

12

(2004) (explaining that social norms discourage discussion of

salaries in the workplace and observing that one-third of U.S.

private sector employers have policies which, although

illegal, bar employees from discussing their salaries, while

many other employers informally communicate an expec-

tation of salary confidentiality). Even if an employee

fortuitously learns that she earns less than a male colleague,

she is unlikely to have access to the information necessary to

discern the basis for the disparity. See id. at 178 (“Employees

observe wage differentials without the full information neces-

sary to evaluate the justifications for differing wages.”).

Pay discrimination is especially difficult to perceive be-

cause it is rarely accompanied by circumstances suggestive of

bias. Indeed, unless it implements a pay cut, a paycheck is

unlikely to be experienced as adverse at all. A victim of pay

discrimination may even receive raises and be satisfied with

her pay, unaware that her male colleagues earn more. In

contrast, with a discriminatory hiring, firing, promotion or

demotion, the victim immediately knows that she has ex-

perienced an adverse employment action. She can search out

an explanation from the employer, evaluate it for pretext, and

note any comments suggestive of stereotyping or bias. In

making sense of any explanation, she will have less difficulty

identifying comparators. Pay discrimination, in contrast, is

rarely accompanied by any explanation from the employer,

comparison with other employees’ salaries, or discernible

signs of prejudice. Together, these factors make pay discrim-

ination especially difficult to detect. See Major & Kaiser,

supra, at 289-90 (discussing research showing that people are

better able to perceive discrimination when it is accompanied

by overt indicators of prejudice).

The absence of aggregate data showing comparisons

between men and women as a group makes it particularly

difficult to perceive discrimination on an individual basis.

See Kaiser & Major, supra ‘manuscript at 5-6). Yet this is

precisely the situation in which a prospective pay discrim-

13

ination plaintiff is likely to find herself. Unlike job decisions

with respect to hiring, firing, promotion, transfer and demo-

tion, where an employee can usually get some picture of how

women generally fare in such decisions, an employee

typically has no way of knowing, short of discovery, how

women overall are paid compared to men. As a result, it is

particularly difficult to perceive individual instances of pay

discrimination.

Perceiving discrimination is only half the battle. Even if an

employee is able to perceive pay discrimination in the short

window of time allowed by the court below, there are

additional obstacles to filing a timely charge. As a general

matter, research shows that employees rarely challenge dis-

crimination, even when it is obvious. See Brake, supra, at

28-36 (discussing and citing social science literature

documenting the obstacles to challenging discrimination).

The high risk of retaliation and the social costs imposed on

people who complain about discrimination sharply discourage

women from reporting it to authorities or legal institutions.

See id. at 37; Major & Kaiser, supra, at 294-96; Kaiser &

Major, supra (manuscript at 25-32, 34). Even in the

harassment context, for example, where the discrimination is

more obvious and blatant, filing a complaint is a last resort,

after other strategies have failed. See Joanna L. Grossman,

The Culture of Compliance: The Final Triumph of Form Over

Substance in Sexual Harassment Law, 26 Harv. Women’s L.

J. 3, 25-26 (2003) (reviewing surveys and studies of victim

response to harassment).

In light of the personal costs of reporting discrimination, an

employee who is aware of pay discrimination might rea-

sonably tolerate it for some time, until the discrimination

deficit becomes too much for her to tolerate. Yet under the

ruling below, once a salary review takes place, the employee

loses her chance to challenge pay discrimination first set in

motion by prior decisions. Such a rule greatly dilutes Title

VII's promise of nondiscrimination.

14

2. Pay Discrimination That Begins When an

Employee is Hired is Especially Difficult to

Reach Under the Ruling Below.

The decision below places an inordinate burden on all pros-

pective Title VII claimants to quickly perceive and complain of

each discriminatory salary decision. However, the lower court’s

rule has especially dire consequences for employees subjected

to pay discrimination when they are first hired.

The time of hiring is a common departure point for salary

discrimination. See, e.g., Barry Gerhart, Gender Discrimina-

tion in Current and Starting Salaries: The Role of Per-

formance, College Major and Job Title, 43 Indus. & Lab. Rel.

Rev. 418, 427 (1990) (“even with a comprehensive group of

control variables, the analysis shows that women had

significantly lower starting and current salaries than men’’).

Supervisors often have more discretion in setting a starting

salary than they do in subsequent adjustments to salary. See

Kostas G. Mavromaras & Helmut Rudolph, Wage Discrimi-

nation in the Reemployment Process, 32 J. Hum. Resources

812, 813-14 (1997). Moreover, many .ob postings indicate a

broad salary range rather than a specific salary, so new

employees may not know that they are being paid less than

other entry-level hires. Jd. The practice of using prior salary

as a baseline for establishing a starting salary can also lead

to lower salaries for women at the time of hiring.* And,

* A number of courts have rejected, under some circumstances, the use

of prior salary to set entry-level wages as a defense to a prima facie case

of pay discrimination under the Equal Pay Act and Title VII. See, e.g.,

Glenn v. General Motors Corp., 841 F.2d 1567, 1571 (11th Cir.), cert.

denied, 488 U.S. 948 (1988); Kouba v. Allstate Ins. Co., 691 F.2d 873,

878 (9th Cir. 1982); Futran v. Ring Radio Co., 501 F. Supp. 734, 739

(N.D. Ga. 1980); see also Jeanne M. Hamburg, Note, When Prior Pay

Isn't Equal Pay: A Proposed Standard for the Identification of “Factors

Other Than Sex” Under the Equal Pay Act, 89 Colum. L. Rev. 1085, 1108

(1989) (contending that employers should have the burden of justifying

use of prior salary when it results in unequal pay).

15

as discussed in the previous section, wage discrimination that

begins in a starting salary is likely to follow an employee

throughout her career, amplified by the typical percentage-

based adjustments that follow. Yet, the time of initial hire is

when an employee’s ability to perceive and complain of pay

discrimination is at its lowest.

Limited exposure to the workplace undermines a new

employee’s ability to detect pay disparities and to sort out

benign from discriminatory influeaces. The code of silence

governing employee compensation is likely to be especially

impenetrable for new employees. To the extent that em-

ployees ever learn comparable salary information, it is often

through the kinds of informal connections with coworkers

that develop over time. Many women do not learn until much

later that they have been underpaid compared to their male

counterparts for some time. . See, e.g., Goodwin v. General

Motors Corp., 275 F.3d 1005, 1008-09 (10th Cir.), cert.

denied, 537 U.S. 941 (2002) (plaintiff did not know what her

colleagues earned until a printout listing of salaries myster-

iously appeared on her desk, seven years after her starting

salary was set lower than her coworkers’ salaries); McMillan

v. Mass. Soc’y for the Prevention of Cruelty to Animals, 140

F.3d 288, 296 (Ist Cir. 1998) (plaintiff worked for employer

for years before learning of salary disparity published in a

newspaper).

A recently hired employee will also face a particularly

thorny predicament in deciding whether to file a charge of

discrimination within the Eleventh Circuit’s timeframe.

There are many good reasons why an employee might be

unable or unlikely to challenge a discriminatory salary deci-

sion soon after being hired, foremost among them that she

needs to keep her job. The most common reason for not

challenging discrimination, the fear of retaliation, is likely to

be most acute for new employees, who are especially vul-

nerable. Without the benefit of an established work record, a

recently hired employee will have little to fall back on if

16

called upon to prove that an adverse action resulted from

retaliation as opposed to job performance. Cf 2 Arthur

Larson, Employment Discrimination § 35.01, at 35-3 (2d ed.

2006) (explaining that a defendant may rebut a prima facie

case of retaliation by offering a nondiscriminatory reason for

its action, shifting the burden back to the plaintiff to prove

that the proffered reason was pretextual). And with less of an

opportunity to develop strong connections and support from

colleagues and supervisors in the workplace, a new employee

may be less inclined to risk’ retaliation by challenging a

discriminatory pay decision. See Major & Kaiser, supra, at

295-96 (discussing the importance of social support as a

factor influencing the decision to report discrimination).

Concerns about retaliation also may be heightened for new

employees who are hired at a lower point in the

organizational hierarchy, compared to employees with longer

tenure who have been able to work their way up. See Brake,

supra, at 39-40.

For these reasons, the Eleventh Circuit’s rule will likely

remove from challenge much pay discrimination that begins

in starting salaries, with devastating and long term financial

consequences for the employees who suffer it.

3. The Possible Applicability of a Discovery Rule

Does Not Adequately Address These Problems.

The Eleventh Circuit mistakenly assumed that equitable

tolling principles could avert the danger that its ruling would

defeat employees’ Title VII rights. Pet. App. 19a n.16. As an

initial matter, however, it is not clear whether and to what

extent a discovery rule applies at all to Title VII claims.”

* Although this Court has stated that equitable tolling principles apply

under Title VII, it has never expressly declared that Title VII allows for a

discovery rule. See Morgan, 536 U.S. at 105, 114 n.7; id. at 124

(O’Connor, J., concurring) (¢xpressing the belief that “some version of the

discovery rule applics to discrete-act claims”). With respect to pay claims

in particular, until quite recently, the widespread reliance on Bazemore to

17

Even assuming that a discovery rule applies to all Title VII

claims, as amici believe it should, its application will not

ameliorate the harshness of the rule imposed by the court

below. A court applying a discovery rule to a pay discrim-

ination claim would likely start the limitations period running

from the time the employee learns that a male comparator

earned a higher salary, see Jnglis v. Buena Vista Univ., 235 F.

Supp. 2d 1009, 1025 (N.D. lowa 2002), even if the employee

does not yet realize that discrimination has occurred. See

Oshiver v. Levin, 38 F.3d 1380, 1386-87 (3d Cir. 1994)

(describing the discovery rule in a discriminatory hiring and

discharge case as starting the limitations period from the

plaintiff's awareness of injury, not the awareness of a legal

wrong). But using mere knowledge of a pay disparity to start

the clock running would not solve the problems discussed

above with respect to perceiving discrimination. Even if an

employee fortuitously learns of a male colleague’s salary, this

information is unlikely to be accompanied by an explanation

from the employer, broader wage data on the workplace,

overt signs of prejudice, or any of the other information that

enables employees to attribute adverse actions to discrim-

iuation. Consequently, the application of a discovery rule

will not enable employees to overcome the obstacles to per-

ceiving pay discrimination.

treat each discriminatory paycheck as actionable provided little occasion

to consider whether to adopt a discovery rule in such cases. See Inglis v.

Buena Vista Univ., 235 F. Supp. 2d 1009, 1021 (N.D. lowa 2002)

(explaining that, before Morgan, courts interpreted “pay claims as

continuing violations of Title VII, regardless of whether the plaintiff

challenged a single act of wage discrimination or a discriminatory pay

policy”). As a result, the applicability of a discovery rule to pay claims is

not settled. Compare Hamilton v. 1st Source Bank, 928 F.2d 86, 90 (4th

Cir. 1990) (en banc) (rejecting a discovery rule for pay claims under the

Age Discrimination in Employment Act and holding that the “last

possible time that pay discrimination could have occurred was the date

when [plaintiff] received his final paycheck”) with Inglis, 235 F. Supp. 2d

at 1025 (applying a discovery rule to Title VII pay discrimination claim).

18

Reliance on a discovery rule, however well-crafted, is an

inadequate and undesirable solution to the predicament

employees face under the decision below. The Eleventh

Circuit’s: rule, as tempered by a discovery rule, would turn

virtually every Title VII pay discrimination case into a

pitched battle over what the plaintiff knew and when,

requiring the fact finder to sort out the precise point in time at

which the plaintiff had enough information to put her on

notice that she had a pay discrimination claim. Because a

paycheck itself is not inherently adverse, does not come with

a list of comparators, and is unlikely to be accompanied by

any explanation or overt signs of bias from the employer, a

discovery rule is particularly difficult to apply in such cases.

The typical triggers of notice present in other discrimination

claims, such as notice of a demotion and the identity of one’s

replacement, are absent in a pay discrimination claim.

Rather than adopt a rule that would require protracted

litigation over the timing and extent of the plaintiff's

knowledge in virtually every pay discrimination case, this

Court should reaffirm its position in Bazemore that each

discriminatory paycheck is actionable, thus keeping the focus

of the dispute on the critical question of whether the employer

pays the plaintiff less because of her sex.

4. The Eleventh Circuit Rule Pressures Plaintiffs

to File First and Ask Questions Later.

In order for an employee to avoid the harsh consequences

of the Eleventh Circuit’s rule, the prudent course of conduct

would be to file a discrimination charge within 180 days of

each new pay decision if she has the slightest reason to

suspect that she is paid less than similarly situated males. At

the outset, given the uncertainty about how a discovery rule

might apply to pay claims, the decision below places the onus

on the employee to find out quickly as much as she can about

her colleagues’ pay, at whatever cost to herself or to work-

19

place cohesion. See Bierman & Gely, supra, at 177-78

(explaining that learning other employees’ salaries generates

conflict among employees and undermines morale). Once

she discovers a disparity in pay, an employee determined to

protect her Title VII mghts under the Eleventh Circuit's

framework may find herself forced into an early litigation

posture rather than take the time to pursue more informal and

conciliatory strategies to protest her pay. Cf Int'l Union of

Elec. Workers v. Robbins & Myers, Inc., 429 U.S. 229, 236-

40 (1976) (pursuit of a collective bargaining grievance proce-

dure does not toll Title VII's limitations period). Such hyper-

vigilance is not necessarily best for the employee, given the

high costs of complaining of discrimination, discussed above,

and is likely to lead to unnecessary litigation that could have

been avoided but for the intense time pressures generated by

the Eleventh Circuit.

Amici recognize that just because a rule operates harshly in

practice does not justify the creation of a judicially crafted

exception where the terms of the statute require such a result.

Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980). But

in this case, it is the Eleventh Circuit that departed from

the terms of the statute and twenty years’ experience under

Bazemore. This Court should reject such a strict approach.

B. The Decision Below Discourages Voluntary

Compliance and Invites Subterfuge.

The incentives placed on employers by the Eleventh

Circuit in this case are flatly inconsistent with the deterrent

purpose of Title VII. Under this approach, discriminatory

wages in place long enough are effectively grandfathered in,

eliminating an employer’s incentive to voluntarily comply

with Title VII. The lower court’s ruling not only ends incen-

tives for voluntary compliance, but actually deters employers

from engaging in such efforts. Under the reasoning of the

court below, undertaking a comprehensive salary review to

examine gender equity could risk opening up the employer to

20

charges of pay discrimination that would otherwise be fore-

closed by more narrowly confined, regular reviews of indi-

vidual salaries. An employer would be better off leaving

undiscovered any gender disparities in wages, and conducting

periodic salary reviews allowing for only marginal modifi-

cations that are unlikely to raise any new allegations of

discrimination. Surely Congress did not intend Title VII to

discourage employers from proactively addressing gender-

based pay disparities. See, e.g., Burlington Indus., Inc. v.

Ellerth, 524 U.S. 742, 764 (1998) (noting “Congress” inten-

tion to promote conciliation rather than litigation in the Title

VII context”); Alexander v. Gardner-Denver Co., 415 U.S.

36, 44 (197°) (“Cooperation and voluntary compliance were

selected as the preferred means for achieving [Title VII’s]

goal.”). Indeed, to be consistent with other nondiscrimination

requirements, Title VII must encourage employers to take

such steps. See, e.g., Exec. Order No. 11,246, 3 C.F.R. 339

(1964-65), reprinted as amended in 42 U.S.C. §2000e (2000)

(placing affirmative obligations on federal contractors to take

proactive steps to find and correct discriminatory practices,

including illegal pay practices, in their workforce).

If the lower court’s rule were allowed to stand, it is a safe

bet that virtually a// employers, if they had not done so

already, would act quickly to establish regular pro forma

salary reviews to insulate discriminatory pay decisions from

challenge. In effect, the court’s ruling invites employers to

take advantage of a new, unprecedented and nearly failsafe

affirmative defense to pay discrimination claims, without

even placing the burden of persuasion on the employer. In a

misguided effort to justify this approach, the Eleventh Circuit

repeatedly chastised the plaintiff for not taking advantage of

the opportunity provided in her annual review to raise her pay

discrimination complaints with her employer. Pet. App. 24a

(“[T]he timing of the employer’s compensation system cre-

ates one, obviously preferable opportunity for an employee to

' make any pay-related complaints: the point at which the

21

employee’s salary is reviewed and he or she is dissatisfied

with the result.””); Pet. App. 26a (distinguishing a contrary

circuit precedent by noting, “[t]here is no indication . . . that

the employer had in place any sort of system like Goodyear’s,

giving the plaintiff regular opportunities to complain of

improperly deflated pay . . . .”); Pet. App. 3la (“. . . Owen

told Ledbetter that she would not be receiving a raise when he

met with her to discuss her performance appraisal, and she

made no complaint about being discriminated against.”).

This Court has never placed the onus on a plaintiff to

complain internally of discrimination as a prerequisite for an

actionable Title VII claim, and for good reason. The lower

court’s emphasis on an employee’s failure to complain to her

employer at the time of her salary review fails to account for

the bind confronting employees if they complain too soon

without a sufficient basis for believing that Title VII was

violated. See Clark County Sch. Dist. v. Breeden, 532 U.S.

268, 273-74 (2001) (per curiam) (Title VII does not protect a

plaintiff from retaliation if she lacked a reasonable belief that

the conduct she opposed violated the statute). Instead, this

Court has held that when a tangible employment action is

involved, employer liability is automatic, regardless of

whether the employee first complains informally or files an

internal grievance. See Faragher v. City of Boca Raton, 524

U.S. 775, 790 (1998). The much narrower affirmative de-

fense adopted by this Court for the limited context of super-

visory sexual harassment lacking a tangible employment

action obviously has no applicability here, as there is nothing

quite so tangible as a paycheck.

Under the Eleventh Circuit’s framework, by providing

regular salary reviews that enable only modest adjustments in

wages, an employer could effectively nullify Title VII's

prohibition on wage discrimination. Title VIJ’s substantive

protections must not be so easily thwarted.

22

Ill. THE DECISION BELOW CONTRAVENES

TITLE VIP?’S LANGUAGE AND INTENT.

The decision below is contrary to the law of Title VII in

many respects. Amici focus on three critical errors. First, the

Eleventh Circuit’s mistaken view of discriminatory intent led

it to misconceive the unlawful employment practice that

triggers the limitations period in a pay discrimination claim.

Second, the lower court failed to consider the implications of

Title VII’s two-year back pay provision, 42 U.S.C. §2000e-

5(g)(1) (2000). And finally, the court below disregarded the

Civil Rights Act of 1991, which makes clear that Title VII

permits a plaintiff to challenge the present implementation of

a prior discriminatory decision.

A. The “Unlawful Employment Practice” is the

Discriminatory Paycheck, Not the Underlying

Intent.

The decision below mistakes an employer’s intent to dis-

criminate against women for the disparate treatment that effec-

tuates that intent. It is the latter practice which comprises the

“unlawful employment practice” that triggers Title VII’s limi-

tations period. 42 U.S.C. § 2000e-5(e)(1) (2000) (“A charge . .

. Shall be filed within one hundred and eighty days after the

alleged unlawful employment practice occurred . . . .”).

In a Title VII pay discrimination case, the unlawful

practice is the discriminatory paycheck that compensates a

woman less because of her sex. See Bazemore, 478 U.S. at

395-96. Discriminatory intent is established when a plaintiff

proves that she has received unfavorable treatment because of

her sex. See, e.g., County of Washington, Oregon v. Gunther,

452 U.S. 161, 179 (1981) (Title VII plaintiff must prove “that

her salary would have been higher had she been male”);

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80

(1998) (“‘The critical issue, Title VII’s text indicates, is

whether members of one sex are exposed to disadvantageous

terms or conditions of employment to which members of the

23

other sex are not exposed.””’) (quoting Harris v. Forklift Sys-

tems, Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring)).

Thus, the unlawful practice that triggers the limitations period

is the differential treatment, even if the underlying intent

originated outside the limitations period.

The Eleventh Circuit went astray by viewing the “unlawful

employment practice” as beginning and ending with the

subjective intent of the decisionmaker. Pet. App. 24a (“[A]n

employee . . . may look no further into the past than the last

affirmative decision directly affecting the employee’s pay

immediately preceding the start of the limitations period.

Other, earlier decisions may be relevant, but only to the

extent they shed light on the motivations of the persons who

last reviewed the employee’s pay, at the time the review was

conducted.”). The court compounded its error by improperly

defining discriminatory intent as a conscious ill will towards

women and a lack of good faith, rather than the intent to pay a

woman less because of sex. Compare Pet. App. 31a (“There

was no evidence that he [Owen] bore any ill will towards

Ledbetter or toward women generally”) and Pet. App. 31la-

32a n.21 (“It is not discriminatory to honestly rely on

inaccurate information . . . and there was no evidence that

Owen acted any way but in good-faith reliance on the

information he was using.”) with Int'l Union v. Johnson

Controls, Inc., 499 U.S. 187, 199 (1991) (explaining that “the

absence of a malevolent motive” does “not alter the

intentionally discriminatory character of the policy”).° In

effect, the court incorrectly grafted a willfulness requirement

° The lower court’s view that good: faith reliance on a discriminatory

performance review does not violate Title VII as long as the person who

implemented the discriminatory decision was unaware of the underlying

bias, Pet. App. 3la-32a n.21, is simply not the law. See Faragher, 524

U.S. at 790 (“there is nothing remarkable in the fact that claims against

employers for discriminatory employment actions with tangible results,

like . . . compensation . . . , have resulted in employer liability once the

discrimination was shown”).

24

onto Title VII.’ These misconceptions led the court to

incorrectly view the unlawful employment practice as limited

to the past, even though the discriminatory paychecks

continued throughout the limitations period.

Under Title VII's plain language, it is the unlawful em-

ployment practice, not the underlying intent, that triggers the

limitations period. That practice occurs with each paycheck

that pays a woman less because of her sex.

B. Title VII’s Allowance of Up to Two Years’

Backpay Must Mean That a Plaintiff Can

Challenge Pay Discrimination Traceable to

Decisions Made Before the Limitations Period.

Title VII allows for recovery of backpay up to two years

before the charge of discrimination is filed. 42 U.S.C. §

2000e-5(g)(1) (2000) (“Back pay liability shall not accrue

from a date more than two years prior to the filing of a charge

with the Commission.”). A necessary implication of this

provision is that a Title VII plaintiff must be able to challenge

pay discrimination that began before and continues into the

filing period, and recover up to two years’ backpay if the

discrimination extends into that timeframe.

If the two-year backpay provision did not apply to pay

discrimination claims such as Ledbetter’s, it is difficult to

imagine how it would have any application at all.* Under this

” Although some form of malice, ill will, or intent to violate the statute

is necessary for punitive damages, see Kolstad v. Am. Dental Assoc., 527

U.S. 526, 529-30 (1999), no such intent is required to establish Title VII

liability. See, e.g., Albemarle, 422 U.S. at 422 (holding that the em-

ployer’s lack of “bad faith” was not a sufficient reason to deny backpay,

and noting that “a worker’s injury is no less real simply because his

employer did not inflict it in ‘bad faith””).

* Although in theory, the decision below might permit Title VII's two-

year backpay provision to apply to cases where the most recent salary

decision occurred two or more years before the charge was filed, this

surely describes a tiny class of cases. Moreover, because the Eleventh

Circuit explicitly declined to rule that a plaintiff could ever challenge a

25

Court’s decision in Morgan, when a plaintiff challenges a

discriminatory hiring, firing, demotion, promotion or transfer

decision, the two-year backpay allowance does not apply.

Because these are discrete, self-contained acts, recovery is

limited to the consequences of that act, which, by definition

(assuming a timely charge), begin during the limitations

period. See Morgan, 536 U.S. at 114. For example, if a

plaintiff was demoted on January 1, 2001, and filed a charge

on the last day of the limitations period, her eligibility for

backpay would not extend farther back than the demotion, or

180 days before she filed the charge.

Nor does the two-year backpay provision have any

application to hostile environment harassment. Although a

plaintiff may seek a remedy for harassment that occurred

prior to the filing period as long as it forms part of the hostile

environment that extends into the filing period, a hostile

environment claim provides no occasion to seek backpay, as

opposed to compensatory and punitive damages, for such

prior acts.” The very nature of such a claim is that it does not

involve something tangible like a loss of pay. See Meritor

Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64-65 (1986).

Thus, Congress’ allowance of up to two years’ backpay

would be rendered virtually meaningless if plaintiffs could

not challenge and seek recovery for pay discrimination that

began before and continued into the limitations period. C/

Sabree v. United Bhd. of Carpenters, 921 F.2d 396, 401 (ist

Cir. 1990) (“By allowing for the possibility of recovering

pay decision that occurred outside the limitations period, this remote

possibility is not a promising basis for salvaging § 2000e-5(g)(1).

* Backpay, as distinct from compensatory and punitive damages, is

available for hostile environment harassment only where there has been a

constructive discharge, which is treated the same as a termination for

purposes of remedy. See Pennsylvania State Police v. Suders, 542 U.S.

129, 147 (2004) (“[A] prevailing constructive discharge plaintiff is

entitled to all damages available for formal discharge. The plaintiff may

recover postresignation damages, including . . . backpay . . . .”).

26

back pay for over a year prior to the 300 day filing period,

‘Congress must have envisioned continuing remediable

violations that existed prior to the running of the period.’”)

(quoting Charles A. Sullivan et al., Employment Discrim-

ination, §11.5 at 452 (1988)). Indeed, this provision has its

most direct application to cases where the plaintiff challenges

pay discrimination that began two or more years before the

charge was filed and continued into the limitations period. '°

The lower court’s conclusion that it is a “necessary con-

sequence” of Morgan that “the employee is limited to

recovering for those paychecks received within the limita-

tions period” does not withstand scrutiny. Pet. App. 24a-25a

n.18. Although some other courts have also misinterpreted

Morgan to bar plaintiffs from seeking backpay for pay

discrimination that occurred prior to the filing period, they

too have failed to explain how this limitation can be squared

with § 2000e-5(g)(1). See Shea v. Rice, 409 F.3d 448, 451

(D.C. Cir. 2005); Forsythe v. Fed'n Empl. & Guidance Serv.,

409 F.3d 565, 573 (2d Cir. 2005).

° The only other plausible use for § 2000e-5(g)(1) would be in cases in

which equitable tolling was applied to extend the filing period beyond 180

days from the discriminatory act. See, e.g., Douglas Laycock, Continuing

Violations, Disparate Impact in Compensation, and Other Title VII Issues,

49 Law & Contemp. Probs. 53, 57-58 (Autumn 1986) (arguing that the

two-year backpay allowance could be given effect by applying it to cases

involving estoppel and fraudulent concealment). However, this is an odd

way to make sense of the explicit language in § 2000e-5(g)(1), given that

Title VII .says nothing about equitable tolling at all, much less that the

explicit two-year backpay allowance is limited to such cases. See id. at 58

(acknowledging that “Congress probably was not thinking about those

cases” when it enacted this provision). Nor does this explanation do

justice to Congress’ design that backpay be broadly available to fulfill

Title VII's remedial purposes and not limited to exceptional cases. See

Albemarle, 422 U.S. at 416-23 (discussing the important role of backpay

in Title VII's remedial scheme); see also Morgan, 536 U.S. at 113

(cautioning that equitable doctrines such as a and estoppel “are to be

applied sparingly”).

27

Morgan does not foreclose the application of § 2000e-

5(g)(1) to pay discrimination claims. That case only barred

recovery for discrete acts, such as hiring, firing, promotion,

demotion and transfer decisions, that occurred outside the

limitations period. Morgan, 536 U.S. at 114-15. It refused to

fashion such a rule for all Title VII claims, specifically

permitting plaintiffs to seek make-whole relief for earlier

harassment that forms part of the same hostile environment

that extends into the filing period. /d. at 119-21.

For purposes of crafting a remedy, pay discrimination falls

on the harassment side of the line under Morgan. Much like

acts of harassment, each discriminatory paycheck is part and

parcel of the same discriminatory conduct. The accumulation

of harm and the linkage of the discriminatory acts to the same

discriminatory decision make pay discrimination precisely the

type of discrimination for which the statute’s two-year back-

pay provision was designed."' Indeed, a number of courts

have recognized that Title VII’s two year backpay allowance

applies to pay discrimination claims, both before and after

Morgan."

As this Court has long recognized, the allowance of

backpay is a crucial part of Title VII’s remedial scheme. See

Albemarle, 422 U.S. at 416. Indeed, when Congress enacted

the two-year backpay provision in 1972, it reaffirmed the

'' Because the two-year backpay allowance does not eliminate the need

to prove a violation within the limitations period, there is no reason for

concern about saddling defendants with stale claims. Moreover, to the

extent that liability for up to two years of backpay for pay discrimination

that continues into the limitations period is burdensome for employers, it

is a burden that Congress explicitly imposed.

'? See, e.g., Goodwin, 275 F.3d at 1010; Anderson v. Zubieta, 180 F.3d

329, 337 (D.C. Cir. 1999); Bereda v. Pickering Creek Indus. Park, Inc.,

865 F.2d 49, 54 (3d Cir. 1988); Merrill v. S. Methodist Univ., 806 F.2d

600, 606 (Sth Cir. 1986); Lovell v. BBNT Solutions, LLC, 299 F. Supp. 2d

612, 615 (E.D. Va. 2004); Tomita v. Univ. of Kan. Med. Ctr., 227 F. Supp.

2d 1171, 1180 (D. Kan, 2002).

28

importance of backpay and specifically rejected proposals to

restrict it, including a less generous provision that would have

authorized the accrual of backpay only up to two years prior

to filing a complaint in court. /d. at 420-21 & n.13. In order

to effectuate Congress’ remedial policy, Title VII plaintiffs

must be able to challenge pay discrimination that begins

before and extends into the filing period, and seek up to two

years’ backpay from the date the charge was filed. Cf

Gunther, 452 U.S. at 178 (“We must . . . avoid interpretations

of Title VII that deprive victims of discrimination of a

remedy, without clear congressional mandate.”’).

C. The Court Below Disregarded Congress’ Intent

in Enacting the Civil Rights Act of 1991.

Congress enacted the Civil Rights Act of 1991 in part to

overtum a series of Supreme Court decisions that unduly

narrowed the protection available to discrimination victims.

One of the decisions that prompted Congress to act was

Lorance v. AT&T Technologies, Inc., 490 U.S. 900 (1989).

In Lorance, the plaintiffs challenged a 1979 collective

bargaining agreement that changed the calculation of senior-

ity. Jd. at 902-03. Although this recalculation did not

immediately affect the plaintiffs, it caused them to be

demoted in 1982. /d. The plaintiffs filed a Title VII charge

arguing that the 1979 change in seniority discriminated

against women. /d. Although the charge was timely as

measured from the demotions, this Court held the charge

time-barred, ruling that the adoption of the 1979 agreement

triggered the limitations period. /d at 911. The Court

reasoned that the violation occurs when the discriminatory

decision is made, not when its effects are felt. Jd. at 908-09.

Congress responded by enacting a provision in the 1991

Act specifically designed to overturn the result in Lorance:

For the purposes of this section, an unlawful employ-

ment practice occurs . . . when the seniority system is

adopted, when an individual becomes subject to the

seniority system, or when a person aggrieved is injured

29

by the application of the seniority system or provision of

the system.

42 U.S.C. § 2000e-5(e)(2) (2000).

This provision, although limited by its terms to seniority

systems, was intended as a broad repudiation of the reasoning

in Lorance and an endorsement of the approach taken in

Bazemore. In enacting this provision, Congress clarified its

intent that Title VII reach ongoing practices that perpetuate

discrimination, both with respect to seniority systems and

beyond. See 137 Cong. Rec. $15483, S15485 (daily ed.

Oct. 30, 1991) (interpretive memorandum of Sen. Danforth)

(“This legislation should be interpreted as disapproving the

extension of this decision rule [in Lorance] to contexts

outside of seniority systems.”).

Significantly, with this provision, Congress saw itself as

endorsing and generalizing the result in Bazemore. As the

Senate Report accompanying the proposed Civil Rights Act

of 1990, the precursor to the 1991 Act, carefully explained:

Section 7(a)(2) does not alter existing law regarding

when an employer’s discrete action is, and is not, a

continuing violation of the law; rather, the provision

concerns employer rules and decisions of on-going ap-

plication which were adopted with an invidious motive.

Where, as alleged in Lorance, an employer adopts a rule

or decision with an unlawful discriminatory motive, each

application of that rule or decision is a new violation of

the law. In Bazemore . . ., for example, . . . the Supreme

Court properly held that each application of that racially

motivated salary structure, i.e., each new paycheck,

constituted a distinct violation of Title VII. Section

7(a)(2) generalizes the result correctly reached in

Bazemore.

Civil Rights Act of 1990, S. Rep. No. 101-315, at 54

(1990).'* In explaining that the Lorance provision would not

'’ The Senate did not submit a report with the Civil Rights Act of 1991.

See Civil Rights Act of 1991, H.R. Rep. No. 102-40(I), at 1 (1991), as

30

undercut this Court’s precedents on continuing violations,

Congress repeatedly cited Bazemore with approval. '*

To now rule that Title VII prevents a plaintiff from

challenging the perpetuation of pay discrimination that began

before the filing period would disregard Congress’ intent in

enacting the Civil Rights Act of 1991.

CONCLUSION

For the foregoing reasons, the decision of the court of

appeals should be reversed.

Respectfully submitted,

DEBORAH L. BRAKE JUDITH L. LICHTMAN

Professor of Law JOCELYN C. FRYE *

UNIVERSITY OF PITTSBURGH NATIONAL PARTNERSHIP FOR

SCHOOL OF LAW WOMEN & FAMILIES.

3900 Forbes Avenue 1875 Conn. Ave., NW, Ste. 650

Pittsburgh, PA 15260 Washington, DC 20009

JOANNA L. GROSSMAN (202) 986-2600

Professor of Law MARCIA D. GREENBERGER

HOFSTRA LAW SCHOOL JOCELYN SAMUELS

121 Hofstra University DINA R. LASSOW

Hempstead, NY 11549 NATIONAL WOMEN’S LAW CENTER

11 Dupont Circle, NW, Ste. 800

* Counsel of Record Washington, DC 20036

August 31, 2006

reprinted in 1991 U.S.C.C.A.N. 549 (noting that no Senate report was

submitted).

'* See, e.g., Civil Rights Act of 1991, H.R. Rep. No. 102-40, pt. 1, at 62

(1991), as reprinted in 1991 U.S.C.C.A.N. 549, 600 n.58; Civil Rights

Act of 1991, H.R. Rep. No. 102-40, pt. 2, at 24 (1991), as reprinted in

1991 U.S.C.C.A.N. 694, 717-18 & n.39; Civil Rights Act of 1990, H.R.

Rep. No. 101-644, pt. 1, at 74 & n.78 (1990); Civil Rights Act of 1990,

H.R. Rep. No. 101-644, pt. 2, at 31 & n.41 (1990).

APPENDIX

la

APPENDIX

INDIVIDUAL STATEMENTS OF INTEREST

OF AMICI CURIAE 7

9105, National Association of Working Women is a national

membership-based organization of low-wage women working

to improve the workplace and end discrimination. 9toS’s

members and constituents are directly affected by pay dis-

parities, sex discrimination and the difficulties of seeking and

achieving redress for these issues. Our toll-free Job Survival

Hotline fields thousands of phone calls annually from women

facing these and related problems in the workplace.

For 125 years, the American Association of University

Women (AAUW), an organization of over 100,000 members

and 1,300 branches nationwide, has worked to promote

education and equity for all women and girls. AAUW’s

2005-07 member-adopted Public Policy Program states that

AAUW is committed to supporting fairness in compensation,

equitable access and advancement in employment, and vig-

orous enforcement of employment antidiscrimination statutes.

AAUW believes that pay equity is a simple matter of justice

and continues to support initiatives that seek to close the

persistent and sizable wage gap between men and women.

The American Civil Liberties Union (“ACLU”) is a nation-

wide, nonprofit, nonpartisan organization of more than

600,000 members, dedicated to preserving the principles of

liberty and equality embodied in the Constitution and this

nation’s civil rights laws. In support of those principles, the

ACLU has appeared before this Court on numerous occa-

sions, both as direct counsel and as amicus curiae. Through

its Women’s Rights Project, founded in 1972, the ACLU has

long sought to ensure that the law provides individuals with

meaningful protection from employment discrimination on

the basis of gender. The ACLU Women’s Rights Project is

also devoted to advancing the economic empowerment of

2a

women, as such empowerment is key to gender equality. The

proper resolution of this pay discrimination case is a matter of

substantial interest to the ACLU and its members.

The Coalition of Labor Union Women (CLUW) is a

nonprofit national organization for union women dedicated to

the economic, political and social advancement of women

and all workers. For thirty-five years CLUW has been ad-

dressing economic issues and concerns important to working

women and their families through legislative efforts and at

the workplace, including the elimination of sex- and race-

based wage discrimination.

The Connecticut Women's Education and Legal Fund

(CWEALF) is a non-profit women’s rights organization

dedicated to empowering women, girls and their families to

achieve equal opportunities in their personal and professional

lives. CWEALF defends the rights of individuals in the

courts, educational institutions, workplaces and in their

private lives. Since it’s founding in 1973, CWEALF has

provided legal information and conducted public policy and

advocacy to ensure women have equal employment oppor-

tunities and are free from workplace discrimination.

Equal Rights Advocates (ERA) is a San Francisco-based

women's rights organization whose mission is to secure and

protect equal rights and economic opportunities for women

and girl through litigation and advocacy. Founded in 1974,

ERA has litigated historically important gender-based dis-

crimination cases, including Geduldig v. Aiello, 417 U.S. 484

(1974), Richmond Unified School District v. Berg, 434 U.S.

158 (1977), and is co-counsel in the current sex discrim-

ination case of Dukes v. Wal-Mart Stores, in the United States

District Court, Northern District of California. ERA has

appeared as amicus curiae in numerous Supreme Court cases

involving the interpretation of Title VII including Meritor

Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986); Harris v.

Forklift Systems, Inc., 510 U.S. 17 (1993); Burlington

3a

Industries v. Ellerth, 524 U.S. 742 (1998); and Burlington

Northern and Santa Fe Ry. Co. v. White, 126 S.Ct. 2405.

ERA believes the issues raised by the instant case are equally

critical to women workers who historically have been paid

less than men.

The Feminist Majority Foundation (the Foundation), is a

non-profit organization with offices in Arlington, VA and Los

Angeles, CA. The Foundation is dedicated to eliminating sex

discrimination and to the promotion of women's equality and

empowerment. The Foundation’s programs focus on advanc-

ing the legal, social, economic, and political equality of

women with men, countering the backlash to women's ad-

vancement, and recruiting and training young feminists to

encourage future leadership for the feminist movement. To

carry out these aims, the Foundation engages in research and

public policy development, public education programs, liti-

gation, grassroots organizing efforts, and leadership train-

ing programs.

Hadassah, the Women’s Zionist Organization of America,

founded in 1912, is the largest women’s and Jewish mem-

bership organization in the United States, with over 300,000

members nationwide. In addition to Hadassah’s mission of

maintaining health care institutions in Israel, Hadassah has a

proud history of protecting the mghts of women and the

Jewish community in the United States. Hadassah strongly

supports stricter enforcement of pay equity laws, improve-

ments in restrictive pension policies and support for measures

that will reduce the wage gap and bring about real economic

security for women.

Legal Momentum advances the rights of women and girls

by using the power of the law and creating innovative public

policy. Legal Momentum advocates in the courts and with

federal, state, and local policymakers, as well as with unions

and private business, to promote recruitment and retention of

women in non-traditional jobs. Legal Momentum has liti-

4a

gated cases to secure full enforcement of laws prohibiting sex

discrimination, including Faragher v. City of Boca Raton,

524 U.S. 775 (1998), and has participated as amicus curiae

on leading cases in this area, including Burlington Industries,

Inc. v. Ellerth, 524 U.S. 742 (1998), Oncale v. Sundowner

Offshore Services, Inc., 523 U.S. 75 (1998), and Harris v.

Forklift Systems, Inc., 510 U.S. 17 (1993). Legal Momentum

is fully aware that pay discrimination against women remains

pervasive, and is deeply concerned with assuring that long-

standing discriminatory pay practices remain actionable under

Title VIL. |

MANA National Latina Organization believes that unless

our culture and processes recognize institutional disparities

there will always be an unacceptable gap in salaries. In this

country where the fullness of one’s life is dictated by earn-

ings, unequal pay is guaranteeing a life of despair and dis-

parity for women who are now the majority of the population

in the United States. The most serious argument is that it is

telling future generations that women are not valued and that

their work does not merit the same pay consideration.

Founded in 1996, the National Asian Pacific American

Women's Forum (NAPAWEF) is dedicated to forging a grass-

roots progressive movement for social and economic justice

and the political empowerment of Asian Pacific American

women and girls. The economic empowerment of all women

is one of the central issues that forms the basis of NAPAWF’s

advocacy. NAPAWF supports the plaintiff in Ledbetter v.

Goodyear Tire because the persistence of wage discrimi-

nation prevents women, particularly women of color, from

achieving equality and economic security in the workplace.

Moreover, the difficulties of perceiving and filing claims of

pay inequity are often multiplied for women of color.

Established in 1955, the National Association of Social

Workers (NASW) is the largest association of professional

social workers in the world with 149,000 members and

Sa

chapters throughout the United States, in Puerto Rico, Guam,

the Virgin Islands, and an International Chapter in Europe.

With the purpose of developing and disseminating standards

of social work practice while strengthening and unifying the

social work profession as a whole, NASW provides con-

tinuing education, enforces the NASW Code of Ethics,

conducts research, publishes books and studies, promulgates

professional criteria, and develops policy statements on issues

of importance to the social work profession. NASW

recognizes that discrimination and prejudice directed against

any group are not only damaging to the social, emotional, and

economic well-being of the affected group’s members, but

also to society in general. NASW has long been committed

to working toward the elimination of all forms of discrim-

ination against women. NASW policies support “measures

that allow women who are discriminated against in employ-

ment and compensation to seek full legal and fiscal com-

pensation.” NATIONAL ASSOCIATION OF SOCIAL WORKERS,

Women's Issues, SOCIAL WORK SPEAKS, 366, 370 (2003).

Accordingly, given NASW’s policies and the work of its

members, NASW has expertise that will assist the Court in

reaching a proper resolution of the questions presented in

this case.

The National Council of Women's Organizations is a

coalition of over 200 of the nation’s largest and most

influential women’s groups. Representing 10 million women

nationwide, NCWO groups support full enforcement of laws

that prohibit sex discrimination in employment. NCWO

groups recognize the long-term effects that persistent wage

disparities have on women’s economic security as well as the

difficulties women face in identifying and complaining about

discriminatory pay practices.

The National Organization for Women Foundation is a

501(c)(3) organization devoted to furthering women’s nghts

through education and litigation. Created in 1986, NOW

6a

Foundation is affiliated with the National Organization for

Women, the largest feminist organization in the United

States, with over 500,000 contributing members in more than

450 chapters in all 50 states and the District of Columbia.

Since its inception, NOW Foundation’s goals have included

achieving equal employment opportunities for women. To

that end, NOW Foundation advocates for vigorous enforce-

ment of Title VII of the Civil Rights Act, prohibiting dis-

crimination on the basis of sex.

The National Partnership for Women & Families is a non-

profit, national advocacy organization founded in 1971 that

promotes equal opportunity for women, quality health care,

and policies that help women and men meet both work and

family responsibilities. The National Partnership has devoted

significant resources to combating sex, race, and other forms

of invidious workplace discrimination, and has filed numer-

ous briefs amicus curiae in the U.S. Supreme Court and in the

federal circuit courts of appeal to advance the opportunities of

women and people of color in employment.

The National Women's Law Center (NWLC) is a nonprofit

legal advocacy organization dedicated to the advancement

and protection of women’s legal rights. Since 1972, NWLC

has worked to secure equal opportunity for women in the

workplace, with special attention to women in non-traditional

work environments. NWLC has prepared or participated in

the preparation of numerous amicus briefs in cases involving

sex discrimination in employment before this Court and the

federal courts of appeals.

The Northwest Women's Law Center (the “Law Center”) is

a regional nonprofit organization dedicated to advancing and

protecting the legal rights of women through litigation,

legislation and education. The Law Center provides these

services to women in Washington, Alaska, Montana, Idaho

and Oregon. Since its founding in 1978, the Law Center has

fought to ensure and protect women’s legal rights to equal

7a

pay for equal work. The Law Center has worked on legis-

lative initiatives both locally and nationally to further this

aim. The Law Center has also participated as amicus curiae

in several sex discrimination cases throughout the country

and before the United States Supreme Court.

Pick Up the Pace is a San Francisco-based non-profit

organization whose mission is to identify and eliminate

barriers to women's advancement in the workplace, with

emphasis on glass ceiling discrimination, gender stereotyping

and work/family conflict. Established in 2005, the organiza-

tion seeks to raise awareness of cutting edge gender bias

issues in the workplace through public education, technical

assistance, and legal advocacy, including the filing of amicus

briefs in this Court, most recently in the case of Burlington

Northern & Santa Fe Railway Co. v. Sheila White.

The Women's Law Center of Maryland, Inc. is a nonprofit,

membership organization with a mission of improving and

protecting the legal rights of women, particularly regarding

gender discrimination, workplace issues and family law. The

Women’s Law Center seeks to protect women from discrim-

ination and pay disparities in employment.

Wider Opportunities for Women (WOW) is a non-profit

organization established in 1964 that works nationally and in

its home community of Washington, DC to achieve economic

independence and equality of opportunity for women and

girls. WOW's programs focus on builditig pathways to

economic security through technical and non-traditional

skills, ensuring a workplace and supports responsive to the

needs of families, career development and family economic

self-sufficiency. A woman's economic security very much

depends on her ability to obtain an education free of gen-

der bias.

Women Employed’s mission is to improve the economic

status of women and remove barriers to economic equity.

8a

Women Employed promotes fair employment practices, helps

increase access to training and education, and provides

women with information and tools to plan their careers.

Since 1973, the organization has assisted thousands of work-

ing women with problems of sex discrimination, monitored

the performance of equal opportunity enforcement agencies,

and developed specific, detailed proposals for improving

enforcement efforts. Women Employed strongly believes

that pay discrimination is one of the main barriers to ac-

hieving equal opportunity and economic equity for women in

the workplace.

The Women's Advocacy Project, Inc. (“the Project’) is a

statewide legal non-profit organization based in Austin, Texas

(www.women-law.org). The Project promotes access to

justice for Texas women and children in need. Started in

1982 as a legal hotline, the agency has evolved as an expert

on legal issues affecting survivors of domestic violence and

sexual assault, and now provides a range of legal services to

end violence against women.

The Women’s Bar Association of the District of Columbia

(WBA-DC), which was founded in 1917, advances and

promotes the interests of women lawyers; promotes the

administration of justice; and works to maintain the honor

and integrity of the legal profession. Among its many

activities, the organization monitors legislation and files

amicus briefs on issues vital to its members and the Bar.

WBA-DC has an interest in protecting the legal rights of

women workers, both within and outside of the legal

profession, as guaranteed by Title VII of the Civil Rights Act

of 1964. The organization is particularly interested in

defending the nght of women to seek redress for longstanding

inequalities in the workplace, including gender-related

differences with respect to compensation and benefits.

WBA-DC therefore files as an amicus in this matter in the

interest of protecting the rights of victims of gender-related

9a

pay discrimination to seek and receive just compensation for

all of the harm caused by the discriminatory conduct of their

employers.

The Women's Law Project (WLP) is a non-profit public

interest law firm with offices in Philadelphia and Pittsburgh,

Pennsylvania. Founded in 1974, the WLP works to abolish

discrimination and injustice and to advance the legal and

economic status of women and their families through

litigation, public policy development, public education and

individual counseling. Throughout its history, the WLP has

worked to eliminate sex discrimination, bringing and sup-

porting litigation challenging discriminatory practices pro-

hibited by federal civil rights laws. The WLP has a strong

interest in the proper application of civil mghts laws to

provide appropriate and necessary redress to individuals

victimized by discrimination.

Vv at

* eit

#