Notorious RBG: The Life and Times of Ruth Bader Ginsburg

by Irin Carmon

FROM RBG’S ORAL DISSENT IN LEDBETTER V. GOODYEAR TIRE AND RUBBER COMPANY* In our view, the court does not comprehend or is indifferent to the insidious way in which women can be victims of pay discrimination. Today’s decision counsels: sue early on when it is uncertain whether discrimination accounts for the pay disparity you are beginning to experience. Indeed, initially you may not know that men are receiving more for substantially similar work. Of course, you are likely to lose such a less-than-fully-baked case. If you sue only when the pay disparity becomes steady and large enough to enable you to mount a winnable case, you will be cut off at the court’s threshold for suing too late. That situation cannot be what Congress intended when in Title VII it outlawed discrimination on the basis of race, color, religion, sex, or national origin in our nation’s workplaces. . . . Title VII was meant to govern real world employment practices and that world is what the court ignores today. Comparative pay information is not routinely communicated to employees. Instead it is often hidden from the employees’ view. Small initial discrepancies, even if the employee knows they exist, may not be seen as grounds for a federal case. An employee like Ledbetter, trying to succeed in a male-dominated workplace, in a job filled only by men before she was hired, understandably may be anxious to avoid making waves.