No the case cites are in her dissent - they are not cites of dissents. My apologies for not being clear.
As I've already pointed out Ginsburg does not claim that the impact of a violation is grounds. She argues that payment of substandard wages is a violation.

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A nation of slaves is always prepared to applaud the clemency of their master who, in the abuse of absolute power, does not proceed to the utmost extremes of injustice and oppression.
Edward Gibbon

I disagree, courts don't decide topics, they decide issues, based on law. The best recent example of this was in the Medical Marijuanna case, where Scalia was cited for hypocrisy for voting to uphold the law. The point he made was that the judicial support for the medical marijuanna law was NO different from the very same legal principles that had long been held to justify ANY Federal Drug regulation for medically used drugs (the FDA can in fact under current law BAN drugs). There is NOTHING in the law or current jurisprudence which empowers judges to decide which drugs may or may not be regulated. Congress either has the power to regulate medical usage of drugs, or it does not. If it does not have the power to ban or regulate the usage of marijuanna for medical purposes, then it doesn't have the power to ban or regulate ANY drugs medicinal uses.

I think you will find that your position is far more true of political leftists, judicial leftists, political conservatives in that order, than it is of judicial conservatives. Rarely does anything seem to get in the way of a liberal justices preferred outcome to a case, even if it means making a mutually exclusive or contradictory argument to one made in another case.

It seems that any liberal notion of fairness or policy is--in their minds--enshrined in the constitution. It is dogma among liberal judges that there is an aboslute constitutional right to abortion, based on text and reasoning that is no less dubious than would be a conservative created "right to life" for the unborn. Yet I know of no conservative on the bench who would for a moment consider discovering a right to life in a constitution they know to be silent on the issue as readily as the right to abortion was read into it. Scalia has actually sent a room full of conservatives from deafening applause to stunned silence by denouncing Roe v. Wade, and then equally denouncing the notion that there is a "right to life" to be found anywhere in our constitution.

Just imagine all the fun Conservatives could have as activists with the equal protection clause (it could arguably require a flat tax with far more strict textualist support than the right to abortion or privacy enjoy)

The liberal mindset was on full display at the Alito confirmation hearings. One of the gasbags of the left (I think it was Schummer) was whinning that Alito seemed to him to rarely "be on the side of the little guy"; to which Alito responded that it would be flat out wrong for a Judge to take a "side", that "when the law is on the side of the little guy, I will find for he little guy; when it is on the side of the 'big' guy, I will find for the big guy"

The bottom line is that Conservatives by and large understand that law is given effect by its text, and not the intentions of whoever may have drafted or voted on it. In the end, what is empowered under our constitution to have the force of law is the text, and that this text (including that of the constitution) has a binding meaning, which doesn't change with society's perceptions, but only with an affirmative act on the part of society to amend (in the case of the Constitution) or change (in the case of laws) them.

Ginsburg interjects her own notions of fairness to yield an interpretation of a legal text that renders a clear portion of it to meaningless in the overwhelming majority of instances where the law would apply. It is no different than if you were to define cruel and unusual punishment in such a manner as to never apply to any punishment imaginable....it would clearly be an unreasonable interpretation.

__________________
"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

Robert Bork wrote a brilliant (IMO) condemnation of judicial activism in "The Tempting of America". He claims judicial activism is an equal opportunity failing and cannot be ascribed to judges of any particular political bent. And he hates liberals.

__________________
A nation of slaves is always prepared to applaud the clemency of their master who, in the abuse of absolute power, does not proceed to the utmost extremes of injustice and oppression.
Edward Gibbon

If you found it so brilliant, why is it you seem to openly embrace such activism by the left, and condemn what you perceive as activism on the right? You have just based conservative judges for being so "activist" as to interpret a clear statutory DEADLINE as having some practical purpose and effect, while defending liberals' interpretation of the same in such a manner that virtually eliminates any such deadlines.

One last point on the absurdity of the dissent's postition. Even if we were to accept each paycheck as a fresh "discrete act" actionable under Title VII, wouldn't the deadline still apply in that they would only be able to sue for "discriminatory" paychecks up to 180 days from the filling date, rather than retroactively for years past? In that event, the cause of action would be affirmed, but the damages reduced dramatically so as only to refelct damages incurred going back 180 days from the filing date.

__________________
"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

So does not the main intent of the law mean anything to the claimed "conservatists" in here?

Clearly the main intent of this law is to stop discrimination by making it unlawful.
Every law contains possibilities for loopholes to make the law meaningless if some strange reading of the word of the law is allowed.

Where in the law it says that the "unlawful employment practice" does have to be one single discrete event in order to make repeated discrimination okay to perform?

It the employer at the same time writes unfairly unequal paychecks based on their sex only to two people doing the same job would that not be discrimination right there at that moment?

Which interpretation is true to the main intent of the law and which one is creating a loophole so big to make the law totally missing its power to limit discrimination at all?

What if the woman is never given a single raise during her whole 20 year career?
Would that mean that there is never a discrimination happening because only at the moments when she gets a raise it would be discriminating moment against her as meant by this law?
Gosh, the employers better to protect themselves against lawsuits by never giving a raise at all to some people for decades.

What if the employer wants to protect himself to making contracts that say that they can give bonuses to people and continuously give bonuses of additional 20% to hourly salary to every men in the workplace only and not to any woman working in the same job?
All the people have the written the same contract, but only men are actually being paid bonuses?
Is that sex discrimination intended to be made unlawful by the original intent of this law and also what the word of the law says?

Would the reasonable interpration of what was originally meant by the 180 days limit in this case to mean that discriminating practice stopped to occur at the moment when men and women are started to be be payed equally and 180 days after that moment there should be no new lawsuits for whatever happened in the past? It clearly says so in the law, doesn't it?




.

A Loophole, is generally a situation so unforseen by the legislature as to fall outside of the law. To refer to the deadline (clearly put into the statute by Congress) as a "loophole" is absurd.

As for the "main intent" being "to stop discrimination by making it unlawfull", why did they put ANY time limit or deadline for filing claims (which they undeniably DID DO)? The answer is because for purposes of LEGAL application, "intent" doesn't matter, only what is written and how those words actually promulgated into law would be reasonably understood.

Every single piece of legislation that ends up being signed into law is the result of carefull crafting and balancing of as many as 636 subtly different "intents" (all the members of congress--house and senate--and the President). While Congress clearly made certain actions unlawful and gave individuals discriminated against a civil remedy, they also established clear and unquestionable proceedures for seeking that remedy, as well as establishing a clear time limit (180-300 days depending on the state). That Congress for whatever its reason included a deadline for seeking redress (and the Opinion of the Court goes into a very detailed analysis of perfectly legitimate reasons Congress had for doing so).

This is no different from a statute of limitations for robbery. If you steal something from someone, and the statute of limitations for prosecution is 5 years, the prosecution cannot charge you 6 years after you stole it by arguing that your continued daily possession of that item each day represents a fresh "theft".


Well, you would have to read the statute, and look at the relevant case law precedents. But it is irrelevant for the purposes of discussing the majority and dissent's opinions in this case, because both sides accept this a matter of precedent. There is no disagreement as to whether the law requires "discrete acts", merely as to what constitutes "discrete acts". The dissenters interpret it in such a manner as to void for all practical purposes a clear mandate (the deadline) of the statute. Hence, there's is not reasonable under the canons of construction.

The basic argument behind it is that the statute requires discriminatory intent, and intent is an element of pay SETTING, not pay disbursment which is an administrative proceedure pursuant to a rate setting. Refer back to the analogy of retaining a stolen item not being considered ongoing theft for the purposes of statutes of limitations for prosecution.

There is a deadline in the law, it is clear and unquestionable. It is absolutely unreasonable to interepret the law in such a manner as to void a clear and unambiguous element of it. Again, every law is a carefully crafted balance of numerous interests and priorities. In this case Congress clearly balanced the desire to provide for remedial action against discrimination with the interest that such action be taken in a prompt manner.

Furthermore, ALL Statutes of LImitations represent a "loophole" (your word, not mine) which clearly thwarts a clear desire on the part of the law to make something illegal and punishable. You're thinking would render all statutes of limitations void because it thwarts the "main intent"

Irrelevant, each raise which is based on discrimination is actionable for 180 days from the date it is given. After that 180 days it is no longer actionable under the statute.

As a matter of fact, in THIS case, she alleged specific instances of discrimintation years before resulting in lower performance ratings (which resulted in lower pay), and had sued for the CUMULATIVE impact. Absolutely nothing prevented her from filing an EEOC charge at the time of her evaluation if she believed it was based on unlawful discrimintation within 180 days of that discrimination. But her ongoing paychecks resulting from that action are no more "fresh" actionable claims than the ongoing possesion of stolen property reprents "fresh" theft for purposes of statutes of limitations.

There is not LEGALLY ACTIONABLE discrimination after 180 days of the discrete act. Again, it is undeniable that congress created a deadline, it is completely unreasonable (if not wilfully dishonest) to interpret the law in a manner that voids this deadline for all practical purposes.

Well this would be problematic, in that most businesses have official HR policies (required by law to be applied equally), which includes performance evaluations, periodic reviews to assess eligibility for raises, promotions, etc. In which case, failure to apply those policies without discriminatory intent would in and of itself be actionable under the Civil Rights Act. The existance of a discriminatory policy is actionable on its own, without discrete acts as long as it is retained.

But the plaintiff in this case was not alleging discriminatory policies here, she was alleging specific acts of discrimination against her. And

The contracts are discriminatory in that they treat men and women differently, and if they are a matter of policy to write all contracts in such a manner, there would not be a 180 day deadline. But even if it were not a matter of official policy, and each contract was treated as a discrete employment act under the law, the women would have 180 days to file a claim. What would prevent them from doing so in 180 days?

Yes, but the same law makes it absolutely clear that there is a TIME LIMIT for seeking redress. Every word in a law must be given full effect. To interpret a law in a manner as to make meaningless part of itself is an invalid reading.

Again, your reasoning is inconsistent with the existence of ANY deadline. The fact that there is a deadline renders your argument invalid. Regardless of the "intent" to make a particular action unlawful, the very same law which did so ALSO created a clear, matter of fact DEADLINE. This deadline was not some judicially created provision, it is in the text of the law.

If Congress writes a law saying that if someone defames you, you have a right to sue them for $100 million, but that any suit for defamtion must be brought within 180 days of the date of the alleged defamatory act, is it a "loophole" if a judge dismisses the case because you filed it 181 days later? No, because the desire for a deadline for actionable claims was every bit as much a part of the "intent" of the law that was written as the "intent" to make defamation "unlawfull" to begin with. If you don't like it as a matter of policy, take it up with those who WRITE the laws, not those whose job it is to interpret and apply them.

No, because again, you are treating the ongoing IMPACT of a discriminatory action as actionable, the law does not.

And again, irrellevant, because the dissent does not argue any such thing. The dissent acknowledges that the law requires discrete employment acts, they merely argue that each paycheck is--in and of itself--a discrete act. But even if you were to grant that, each paycheck does not under the statute "bring forward" prior discrete acts which fall outside the deadline, in which case each paycheck dating back to at most 180 days prior to the date of filing and only those paychecks would be actionable.

__________________
"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

To clearly to prevent somebody to file claims that between World War I and II they were discriminated.
Most laws have limits to file claims.

It is practically impossible to bring lawsuits if your interpretation of where the time limit starts is the one used so your interpretation voids the whole law.

It is perfectly possible to interpret each paycheck to be discrimatory action and you have not shown how it would make the deadline void.
You are just claiming that if does.

You are making a fallacy in here. You are basically claiming that because sky is blue, the water cannot be blue because it is the sky that is blue. They both are.

Making a policy to discriminate employees can be discriminating.
Creating a contract based on the policy can be discriminating.
Making paychecs based on the contract can be discriminating.

You are right that there needs to be an intent.

But because making a paycheck is administrative procedure it still can be discriminatory if there is intent.
If the company knows that this is happening, then there is intent.
It is not the administrative office clercks fault,
but the fault of the company
or the fault of the big bosses that know that discrimination is happening.

In a small company where the owner of the place knows pretty much everything happening in the place, there is discrimination even though the bank or the accounting office or whatever is making the paycheck is not the one committing a criminal act.

Well that is my opinion also as a most reasonable interpretation of both the intent of the law and the word of it. No reason to claim anything else.

Well, I make no claims about which paychecks would be actionable.

To me it is the principle that counts and even more so the garbage that it spewn when claiming that this distorted interpretation of the law is somehow originalism and dissenters are somehow "outside the law".

Exactly, and this one has a 180-300 day limit depending on the state.

First of all, not even the dissenters argued that a "discrete employment action" is required, and that there is a 180 day limit after each one for which it is actionable. Where they differed was whether, based on precedent, each paycheck was a "discrete employment action" or merely the ongoing EFFECT of a "discrete employment action". And even if you do accept each paycheck as a "discrete employment action", then the 180 day limit applies to each of them individually, meaning from the date of EACH paycheck, there is 180 days upon which to act.

By the legal standard of "intent" paychecks simply don't meet the threshhold. Awareness of discrimination is not "intent" the issuance of a paycheck is only "intended" to administer the terms of an employment action (agreeing to a salary/remuneration).

Precedent is clear on this. In one of the cases cited, a flight attendant was discriminated against by United Airlines in refusing to hire married

In another case:








Merely being aware of something is NOT sufficient to prove intent under the law. Your notion that awareness and allowing for the ongoing impact or results of an action that is otherwise outside the 180-300 day deadline is the equivalent of intent has been consistently rejected by the court. Just as retaining a stolen item after its theft does not represent ongoing "theft" for purposes of criminal prosecution under statutes of limitations.

"intent" is relevant only in-so-far as the interpretation and application of that "intent" is not unreasonable with respect to the TEXT of the law. Congress created a deadline, the "intent" to create a deadline was every bit as equal to the "intent" to facilitate discrimination claims. In the end, the only thing which has legitimate force of law is the TEXT of the law. You can guess all you want at the unwritten "intent" of what the law may be, but what the law SAYS (surely the clearest possible indication of intent is what they actually agreed to and passed into law) that the intent of the lawmakers was to give people a 180-300 day window after they have been discriminated against.

The law itself includes a deadline. The law itself establishes a legal requirement to estblish INTENT. Every shred of legal precedent argues against the possibility of "intent" being formed when issuing a paycheck that happens to be less AS THE RESULT of prior discrimination as opposed to the act itself for which there can be intent.

YOU may think that as a matter of fairness mere knowledge of something is sufficient for establishing "intent", but it has NEVER been sufficient for the LEGAL meaning of intent to establish it.

To view a paycheck as representing ongoing, or "fresh" intent, or that it "brings forward" an otherwise unactionable claim due to a statute of limitations is no different from arguing that retention of stolen property represents "fresh" theft for the purposes of prosecution beyond the statutory limit from the date of the original theft.

In order to prove "intent" you have to point to a specific action and prove that the intent of that action was to discriminate, how exactly does someone prove that their paycheck is lower by "intent" to discriminate? First they have to prove the discrimination, hard to do if they are limited ONLY to the paycheck itself as the "discrete employment action" actionable (actions prior to the 180 days are no longer legally actionable and therefore cannot be used to prove intent for a fresh cause of action).

Let me ask you, if you were discriminated against in a performance review 20 years ago, as a result you're pension is reduced, are you really suggesting that it is a reasaonble interpretation of a statutory deadline that you have 180 days from every pension check you receive to the day you die to make a claim?

You keep making the utterly baseless claim that the Courts ruling would make it virtually impossible to file a Title VII claim. That is simply wrong, the fact of the matter is the reason this case is coming before the court as an issue in 2007 (43 years after passage of the act) is because the overwhelming majority of actions are submitted within the statutory deadline, and each and every precdent where there was any question about the start date of the clock on the deadline has taken the more restrictive view (primarily due to the near impossibility of meeting the statutory requirement of proving "intent").

There is NO doubt that it was the clear (and written) intent of Congress to create a deadline, YOUR interpretation makes that clearly intended outcome virtually irrellevant in almost every conceivable case. A violation of the basic canons of construction.

__________________
"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

Ginsburg Do us all a favor,, STEP DOWN IF YOU DONT LIKE IT!!!

I have no problem of accepting that each paycheck has its own 180 day limit.
So be it.

Both of your examples are different from this case so that the alleged discrimination in here really is an clear one time event which has percussions into the future. and I am not even sure there was any real discrimination happening in these cases.

The seniority issues should really be solved at the time when at the time of hiring or an written agreement was made as clearly the details what is happening with their seniority status were communicated and agreed with the employee at that time and whining about it later is unreasonable.

I have no problem accepting these two examples as sensible ones where justice was served.

The sex issue is different from these examples in a very crucial way
.
The reason for her discrimination, her sex, is a continuating event and she is repeatedly being paid less because she continues to be a woman.

In this sex discrimination case there is no real moment in time when the issue should have been solved. It really is an ongoing event where the pay-disparity has creeped in over time and the employee has great difficulties to know whether she really is being discriminated against and how much as there usually is no information available from other employee payslip and certainly no contract is being made with the employer where she agrees to be paid less because she is a woman.

Inventing an arbitrary point in time in this case as baseline is just injustice.

Now in the future the employer is going to have no problem of inventing 10 different points in time all conveniently more than 180 days in the past when the employer can claim in the court when the deadline calculation starts.

But to show that this was not really what the lawmakers inteded to happen, I am sure there will be no delay to write more clearly the intent of the law so that not even the current bone-headed judges can distort the laws intent.

While I would still disagree fundamentally that each paycheck represents a "discrete employment action", I would find limiting claims to paychecks in the last 180 days to be statutorally undeniable if you DO.

This would mean that damages could only go back 180 days, and not beyond as "cumulative".

Given the near impossibility of proving "intent" from the mere issuance of a paycheck, as a practical matter recognizing the paychecks as "discrete employment actions" subject to BOTH the time limitations of 180-300 days AND the burden of proving direct intent, I think you would find that the end-result would be no different from the standards established by the majority (rather than the dissent) in 99.999% of cases where it is an issues, and an even smaller fraction of all discrimination claims historically (most of which have CLEARLY met the 180-300 day guideline).

Just as the flight attendant was repeatedly paid less and denied the other benefits of seniority because of an earlier event that was discriminatory. The court clearly ruled that the ONGOING disparity in pay and other benefits (nothing in the law directs that direct pay receive any different treatment than any other benefits of remuneration)

In this case, the plaintiff was not arguing a pattern of disparate treatment, she was alleging that long-ago (outside the 180) specific acts of discrimination were "brought forward" by the CURRENT impact of those prior acts.

You are arguing that every instance in perpetuity which the employer knowingly allows that impact to continue occuring is a fresh act of intentional discrimination under the law; it is not. No more than United Airlines KNOWINGLY subjecting a worker to the ongoing pay and benefits impact of prior discriminatory acts "brought forward" that original act and made it actionable even though the 180-300 had clearly passed.


BTW, while I disagree with your logic and reasoning, this is an excellent discussion, you have engaged in a thoughtful (albeit wrongheaded *grin*) discussion of the topic at hand without being even a bit unpleasant....something I wish some others around here could manage to do.

__________________
"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

In which case she is unquestionably wrong on the law, because mere presentment of "substandard" wages does not even come close to meeting the statutory requirement of proving intent. And since it was absolutely clear that the plaintiff was relying on the long ago discriminatory performance evaluations to establish intent, and NOT the contemporaneaous pay, it is clearly a pretext for "bringing forward" an otherwise unactionable claim due to the expiration of the statutory filing time.

Precedent is clear, it must be an contemporaneous action with intent, not merely the ongoing impact of a previously intended discriminatory act.

__________________
"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane