What Counts as 'Discrimination' in Ledbetter and the Implications for Sex Equality Law

17 Pages Posted: 18 Aug 2008 Last revised: 19 Aug 2008

Deborah L. Brake

University of Pittsburgh - School of Law

Date Written: August, 15 2008

Abstract

This article, presented at a Symposium, The Roberts Court and Equal Protection: Gender, Race and Class held at the University of South Carolina School of Law in the Spring of 2008, explores the implications of the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co. for sex equality law more broadly, including equal protection. There is more interrelation between statutory and constitutional equality law as a source of discrimination protections than is generally acknowledged. Although the Ledbetter decision purports to be a narrow procedural ruling regarding the statute of limitations for Title VII pay discrimination claims, at its core, the decision turns on a cramped and narrow understanding of what it means to discriminate on the basis of sex. This understanding has broader implications for sex equality law than the procedural hurdles the decision presents for victims of pay discrimination pursuing Title VII claims. By choosing the most narrow, limiting conception of discrimination, the Court's decision undermines the potential for statutory law to fill in the details of the Constitution's promise of equal protection in three respects. First, by adopting a narrow and restrictive conception of what constitutes discrimination, the Court further dilutes the strength of statutory antidiscrimination law, which has long been the primary source of sex equality guarantees in modern U.S. law. Second, by further narrowing the category of acts that constitute unlawful, intentional discrimination, the Court continues its trajectory of leaving Congress less room to legislate broader equality mandates under Section Five of the Fourteenth Amendment. Finally, by contributing to a legal culture that recognizes discrimination only in its most obvious forms, the decision adds to the legal narratives that make it difficult to perceive more subtle forms of discrimination. An overly narrow definition of discrimination legitimizes status quo inequalities, promoting the perception that choice, ability, or some undiscovered factor must be responsible for whatever inequality remains. For these reasons, I argue that Ledbetter is a decision that significantly undercuts the Constitution's promise of equal protection of the law, despite its statutory and procedural trappings.

Keywords: equal protection, discrimination, sex equality, Title VII, Fourteenth Amendment

Suggested Citation

Brake, Deborah L., What Counts as 'Discrimination' in Ledbetter and the Implications for Sex Equality Law (August, 15 2008). U. of Pittsburgh Legal Studies Research Paper Series No. 2008-23; South Carolina Law Review, Vol. 59, p. 657, 2008. Available at SSRN: https://ssrn.com/abstract=1228539

Deborah L. Brake (Contact Author)

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States

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