Insular Individualism: Employment Discrimination Law After Ledbetter v. Goodyear

Abstract:     
When Ledbetter v. Goodyear Tire and Rubber Co. was decided by the Supreme Court in late-May of this year, commentators - both legal and nonlegal - immediately recognized the obstacle that the decision poses for individuals suffering from discrimination in pay. Shortly after Ledbetter was decided, op-eds appeared in the New York Times, the Chicago Tribune, and the Los Angeles Times, all calling for overturning of the majority's decision and/or better access to pay information, and legislators scrambled to draft legislation providing that each paycheck could constitute an act of discrimination, thus extending the period within which an individual would be able to file her complaint. What these efforts to mitigate the immediate effects of Ledbetter miss, however, is that Ledbetter is part of a much deeper and more potentially devastating conceptual shift that is taking hold in employment discrimination law. This insular individualism - the belief that discrimination can be reduced to the action of an individual decisionmaker (or decisionmakers) isolated from the work environment and the employer - renders the narrow legislative attempts to overrule Ledbetter woefully incomplete. Without adequate challenge, the entrenchment of insular individualism that Ledbetter reflects is likely to have significant repercussions for the future of employment discrimination law.

In this Essay, I seek to uncover the insular individualism in Ledbetter and to map some of its potential consequences for antidiscrimination law. I argue that Ledbetter - and the insular individualism that it reflects - is likely to lead to at least two significant changes in individual disparate treatment law: (1) a narrowing of the evidence plaintiffs alleging individual disparate treatment are permitted to use to make their case; and (2) a cutting back on employer vicarious liability, both by providing exceptions to employer liability for what are seen as errant or rogue discriminating employees, and, as in the area of sexual harassment, by requiring victims of discrimination to complain to their employers about discrimination early on, even when the discrimination is not yet legally actionable. Although these changes are on the immediate horizon (within the next year, the Court will hear arguments in a case raising the first opportunity for such a change, and other opportunities are likely to follow shortly), they are not inevitable. After mapping some of the likely effects of insular individualism, I propose several ways in which those who understand insular individualism can work to weaken its influence.

Accepted Paper Series