Thanks for your thoughtful comments. What it boils down to is this: is the “unlawful employment practice” the payment of a discriminatory wage, or the decision to pay a discriminatory wage? All else flows from this. If it is the decision, then the payment of wages are mere effects of that discriminatory act. If it is the payment, then each is a separate discriminatory act, a “discrete event” as you say, which is separately actionable, and starts the statutory clock running. Your argument assumes the conclusion, that the decision that is the discriminatory act, and that the paycheck accrual rule can only be justified based on a “poisoning the well” sort of argument. That is not our argument at all. Our argument is that there are strong analytical, customary and historical reasons to think that Congress intended each discriminatory paycheck to be considered its own discrete discriminatory act.

I recognize the appeal of the idea that an intentionally discriminatory act only takes place at the time of the decision to discriminate, and not at other times. But I don’t think this is the way that the law generally treats discrimination. To take a famous example, the schoolchildren in Brown could claim present acts of discrimination against them, even though the decision to segregate schools took place many years before, outside the limitations period.

Now, you can distinguish Brown in various ways, but the point is that the accrual of a discrimination claim is not necessarily tied to the decision to discriminate. And further, that it is typically the case that claims arising out of illegal periodic payments (such as wages) generally accrue with each payment, and not with the decision to make illegal payments (see FLSA, price fixing, EPA, etc.). So while it is the case that such laws also have statutory periods, it is also the case that they quite often allow litigation of claims relating back to decisions many years outside the statutory period.

Well, you say that the operation of the statute of limitations in other cases isn’t at issue, but I’m not so sure.

As you note, Title VII prohibits several unlawful employment practices, most of which are defined in 42 U.S.C. § 2000e–2(a): an employer can’t fail (or refuse) to hire, fire or promote a person, or make decisions about their pay and benefits, purely on the basis of, inter alia, their gender. It would be inconsistent to construe Title VII in such a manner that the clock starts running at one point for one kind of violation, and at another point for any other. The problem is precisely that your argument will accomplish this inconsistency.

Disparate pay (which I would understand to be paying two different people different amounts of money for doing the same job), per se, is not forbidden by Title VII. See 42 U.S.C. § 2000e–2(h) (”it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment … provided that such differences are not the result of an intention to discriminate because of … sex”) (emphases added). What Title VII forbids is discrimination because of the person’s “race, color, religion, sex, or national origin.” A Title VII suit for firing someone because of their gender specifically couples the lawsuit to a wilfully discriminatory act: the decision to fire the person was taken, and it was made because of their gender. The clock starts running when the decision is made (or, arguably, when the person is notified).

Your argument, if I understand it correctly, would be that while most of those violations take place at a definite moment in time, a “discrete event,” but when an employer decides to discriminate in a pay decision, while that event is also located at a definite point in time, poisons the well, and thereafter, every sip is a violation. I don’t know about you, but I don’t get a paycheque any more; there are two entities (and I mean entities, not individuals) involved in my being paid every month: our payroll computer, and the bank’s computer that it connects to. I don’t believe that software is capable of sexual discrimination, Scott, unless it’s programmed to do so. But the point is that there are no decisions made in my getting paid every month. Cutting a cheque is an action wholly divorced from the determination of how much that cheque is worth. What you’re trying to do is to establish that it is not only the wilfully discriminatory act that creates a cause of action, but also the subsequent nondiscriminatory events that flow from that act, which I just don’t buy. Preventing that kind of rolling, ongoing liability seems to me to be precisely the purpose of having a time window in which claims may be filed. (That’s something that I can’t get past here: Congress enacted a filing period, and you want to eviscerate that limitation).

In the event of any other kind of discrimination under Title VII, you have 180 days to file after the discrimination ocurred, not 180 days after any event that can be traced back to a discriminatory event. Hence, your construction is precisely to read inconsistency into the statute by uncoupling the 180 day period from the discriminatory event. And moreover, Congress did not originally enact a 180 day filing period; the 1964 Act required a 90 day filing period. The expansion of the filing period to 180 days is the progeny of Section 4(a) of the Equal Employment Opportunity Act of 1973, 86 Stat. 103, a decision Congress made after several years of the practical operation of Title VII. If by “180 days” Congress had actually meant “whenever,” or if it decided that it was unfair to require timely filing of claims, why would it simply have doubled the filing period in the 1973 Act?

As regards the Equal Pay Act, I can’t really speak to that, because I’m insuffiently familiar with it. But what’s your counterargument to counsel’s point that it makes sense to treat this area any different from the Equal Pay Act because they are two different statutes, and “[i]n a Title VII case, in an intentional discrimination case, the question is whether or not there is an act that is motivated by gender during the charge filing period[,] [but] [t]hat is not an element of the plaintiff’s cause of action in an Equal Pay Act case.” In the latter, “all the plaintiff has to do is allege they are performing equal work to a male, and that they are paid differently. And it’s that cause of action that triggers the statute of limitations in an Equal Pay Act case,” Tr. of Oral Arg. 31-32?

With regard to disparate pay, however, there are two arguably “crazy” interpretations this case requires the Court to choose between. One is that the “unlawful employment practice” is the payment of discriminatory wages, in which case the 180-day statute is limited to the situation in which the aggrieved employee has left her job. The other is that the “unlawful employment practice” is the decision to pay discriminatory wages, in which case it is effectively impossible to make out a disparate pay claim under Title VII, because it is extremely unlikely that an employee would know and have grounds to challenge that decision as discriminatory within 180 days, for all the reasons discussed in the briefs.

The question, then, is which interpretation is less crazy? Is it less crazy to think that Congress created a 180-day statutory period, but then made its application to disparate pay cases fairly weak? Or is it less crazy to think that Congress outlawed discrimination “with regard to compensation,” but then made it effectively impossible for plaintiffs to get into court to complain of that discrimination?

I think the former is the clearly the less crazy interpretation of Title VII, even just on its face. But this conclusion is particularly strong when you consider that the very same Congress that passed Title VII also passed the Equal Pay Act just the year before, and under the Equal Pay Act disparate pay claims begin to run with payment of discriminatory wages, not with the decision to pay discriminatory wages.

(Disclosure: I helped with the briefing of this case on behalf of petitioner as a participant in the Stanford Law School Supreme Court Clinic.)

Even assuming that Bazemore stands for the proposition petitioner claims it does, and even assuming it survives Morgan — which could, at very least, be taken to refine that proposition — I don’t see how it makes any sense against the background of the statute’s plainly limited filing period for each individual pay packet to constitute a clock-starting breach. It seems to me that what the petitioner’s asking the court to do — or rather, what it’s saying the court already decided in Bazemore and wants it to reaffirm — eviscerates the 180-day filing period demanded by the statute. I mean, it makes a mockery of it – if the court buys this rule, instead of the clock starting to tick at the time that “the alleged unlawful employment practice occurred,” 42 U.S.C. § 2000e–5(e)(1), the clock never starts ticking, unless or until the employee leaves the company, or shortly thereafter. And under that interpretation, as Kevin conceded at oral argument, it makes no difference whether the person who originally made the decision is long gone; it doesn’t even matter if the company is under totally new ownership. I mean, I was just absolutely staggered by Kevin’s affirmation — for that matter, I could scarcely believe my eyes reading the brief — of the Chief Justice’s suggestion that under petitioner’s argument, it wouldn’t be enough even for a new owner “to come in and even up everybody … [I]f you see that the women are making 20 percent less than the men you don’t escape liability by paying everybody the same going forward, because perhaps if nondiscriminatory decisions had been made the women would have making 20 percent more than the men. You have to go back and revisit every pay decision or you’re exposed to liability for current pay.”

Nor can I me see how any of this squares with Justice Stevens’ opinion for the Court in Mohasco Corp. v. Silver, wherein Justice Stevens sung the praises of the statute of limitations:

By choosing what are obviously quite short deadlines [in Title VII], Congress clearly intended to encourage the prompt processing of all charges of employment discrimination … [I]n a statutory scheme in which Congress carefully prescribed a series of deadlines measured by numbers of days … we may not simply interject an additional … period into the procedural scheme. We must respect the compromise embodied in the words chosen by Congress. It is not our place simply to alter the balance struck by Congress in procedural statutes … [S]trict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.”

Mohasco 447 U.S. at 825-6.

This case just seems absolutely crazy to me. The petitioner seems urging a construction that basically reads the statute of limitations out of Title VII, or at very least, the petitioner wants to uncouple the point at which the clock starts running from the intentionally discriminatory act which, I had thought, must lie at the foundation of any successful Title VII claim. I can’t see how it possibly makes sense to consider cutting a cheque – an act wholly untethered from the decision for how much it will be worth – to be itself a discrete violation, and even if it did, any such claim would evaporate after any pay review in which there was no suggestion of bias.

-Simon Dodd