U.S. Supreme Court: Will Lilly Ledbetter be black firefighters' heroine?

CHICAGO, Feb. 16 (UPI) -- The first legislation President Obama signed into law nine days after taking office was the Lilly Ledbetter Fair Pay Act of 2009. He did so enthusiastically, using a different pen for each letter of his signature so as to maximize the number of keepsake pens for the momentous occasion.

Lilly Ledbetter, 71, stood watching over Obama's shoulder Jan. 29, 2009, as the change in the law she championed, but from which she never will benefit, reversed the U.S. Supreme Court decision denying her recovery of back pay.

After working for 19 years, Ledbetter was found by a jury to have been a victim of discrimination because she earned $6,500 per year less than the lowest-paid male in a similar position. In a 5-4 decision, the high court threw out the case on a procedural issue, saying she should have filed within 180 days from the date her employer first paid her less than her male colleagues. Ledbetter, of course, did not know the date of the first act of discrimination until years later, as wage information is usually not publicly available.

"I've been practicing signing my name very slowly," Obama joked as he presented the first pen to Sen. Barbara Mikulski, D-Md., the bill's chief sponsor, and the last to Ledbetter.

The legislation was a presidential campaign issue. On April 23, 2008, the Senate killed the first attempt at a Ledbetter bill, and Sen. John McCain lauded the defeat of what he called government's attempt to play too large a role in private business matters. Obama repeatedly told Ledbetter's story on the campaign trail, and Ledbetter stumped for him. The 111th Congress quickly revived the bill and rushed it to the president's desk.

The new act was born to great celebration and fanfare, and, as many liberals have declared, it heralded a return of Title VII (the employment discrimination provision section) of the Civil Rights Act of 1964 to its original intent and spirit.

More than a year later, however, the U.S. Supreme Court has not invoked the Ledbetter Act.

On Monday, the Court will have its first opportunity to apply the law when it hears Lewis vs. city of Chicago. In Lewis, the issues of timeliness in filing a case under Title VII are similar to those in the Ledbetter case.

The Lewis case, like Ledbetter, will be heard on those procedural timeliness issues, and not on the substantive merits of the case regarding alleged race discrimination (which are no longer at issue).

In Lewis, 26,000 applicants took tests in July 1995 for entry-level Chicago firefighter positions. Applicants were placed into three groupings based on their test scores: well-qualified (a score of greater than 89), qualified (a score of 65 to 88) and not qualified (a score of less than 65). Employment offers were first to be made to random applicants in the highest grouping, and only once that group was exhausted would offers be made to the middle group.

In January 1996, applicants were informed of their test results and their groupings, but no hiring decisions were made at that time. There were approximately 1,800 "well-qualified" applicants, and, considering predictions were around 600 to 700 people would be hired from the list, it seemed unlikely anyone in the "qualified" group would receive a job offer. The complete set of criteria on which hiring decisions might be made, however, was vague. In any event, no new firefighters were hired until May 1996.

Twelve percent of all the white applicants made it into the well-qualified group, compared to only 2 percent of all African-American applicants. Seventy-six percent of the highest group was white, as compared to only 12 percent black applicants.

Although the numbers indicated whites were more likely to be offered employment, and although the trial court determined the questions and methodologies of the test to have been discriminatory, the impact of the test on hiring decisions remained unclear until May when Chicago first hired firefighters who had taken the test. Once hiring began, Chicago used the list over time.

The African-American Firefighters League consulted attorneys in April 1996 to determine whether they had a discrimination case. Title VII requires that such a claim be filed within 300 days from the date of the discriminatory action.

The lawyers said there would be no timeliness issue as they assumed the clock would reset each time the city hired a firefighter based on the test scores. When the attorneys finally filed the claim with the Equal Employment Opportunity Commission in March 1997 on behalf of Arthur L. Lewis Jr. and a class of approximately 6,000 other black firefighter applicants, it was more than 400 days after the test results were first announced.

The federal district court looked to the merits of the discrimination claim and ruled that the test had a disparate impact on African-Americans. Chicago did not challenge the discrimination adjudication, but rather appealed on the basis that the claim was not filed on time.

The 7th U.S. Circuit Court of Appeals agreed with Chicago, ruling the clock started when the test takers were informed of the scores and the three qualification categories and not when hiring decisions later were made based on the tests. The court said the plaintiffs' attorneys' made a "fatal mistake" in assuming the discriminatory action amounted to a continuing violation that reset the clock each time a hiring decision was made.

The U.S. Supreme Court will decide: Did a discriminatory employment practice occur each time Chicago hired a new firefighter from its list of well-qualified applicants, thus resetting the time period for filing a claim each time? Or instead did a single discriminatory act occur when the applicants learned of the results of the test and of Chicago's policy of hiring from the list, starting the 300-day filing period from that date?

The Ledbetter Act is specifically not limited to wage issues. It appears to have been painted with broad strokes to maximize its applicability. It provides that discrimination may happen at three different times, when:

-- a discriminatory compensation decision or other practice is adopted;

-- an individual becomes subject to a discriminatory compensation decision or other practice;

-- an individual is affected by application of a discriminatory compensation decision or other practice, including (but presumably not limited to) each time wages, benefits or other compensation is paid, resulting in whole or in part from such a decision or other practice.

Under what conditions might the court look to "other practices" and apply the Ledbetter Act to a non-wage case?

The Ledbetter Act embodies the idea that compensation discrimination is different from other employment discrimination actions, such as hiring and promotion. This is because, as in the case of Lilly Ledbetter, the employee may not even know she is being discriminated against since she is not privy to the pay information of her co-workers. Such a situation, the Ledbetter Act implies, should be entitled to more liberally construed opportunities for bringing a timely claim.

Such a wage-discrimination scenario is usually easily contrasted with hiring and promotion decisions, which are obvious to everyone in the workplace. The hiring practices in Lewis, however, may be seen as an exception because, while the firefighter applicants were aware of the date of their test scores and categories, they were not aware of Chicago's hiring decisions based on the tests. The applicants could not know how the discriminatory policy would affect them until each new firefighter hiring occurred.

The justices who dissented in the Ledbetter case (Ruth Bader Ginsburg, John Paul Stevens, Stephen Breyer and David Souter) are likely to want to apply the Ledbetter Act because they might view the Lewis firefighter applicants as similarly situated to Lilly Ledbetter: The applicants could not have known they had been discriminated against at the time of Chicago's announcement of the test scores and the three qualification categories.

Might members of the majority in the Ledbetter case be persuaded to look to the practical difficulties of not applying the "or other practice" language to this hiring practices case?

Lewis argues in his Supreme Court brief that when the EEOC filing period is seen as beginning when an employer actually puts into use a discriminatory hiring policy, the law is clear and predictable. The person injured would file at the time he is able to perceive his injury, would thus know when the filing period begins, and the employer would be in a better position to assess possible liability.

Under Chicago's policy, the EEOC would be burdened not only by having to determine when a hiring policy was set into motion, but it would also have to process potentially premature claims of discrimination. Employees would feel pressured to file claims even if they have just an inkling that they might be a victim of discrimination so as make sure they have filed within the 300 days, the amicus brief of the International Association of Official Human Rights Agencies argues on behalf of Lewis.

"The Supreme Court should apply a common-sense reading of Title VII and hold that discrimination occurs each time an employer uses a selection practice that unfairly excludes qualified African-American applicants for a job," said John Payton, president and director-counsel of the NAACP Legal Defense and Educational Fund Inc., pointing out the substantive merits of the case were long ago already decided: The applicants had, in fact, suffered employment discrimination.

It remains to be seen what the Court will consider a "common-sense reading" of this Title VII scenario in light of the Ledbetter Act.