Supreme Court Litigation Clinic Argues Pay Discrimination Case

The students knew it was going to be a close call. “I thought we had four justices but wasn’t sure we could get a fifth,” says David Moskowitz ’07, describing how he felt after sitting through oral arguments in Ledbetter v. Goodyear, an employment discrimination case taken up by Stanford Law’s Supreme Court Litigation Clinic and heard by the Supreme Court. While the Court’s May, 2007 decision was a blow to the clinic team, the case put a spotlight on pay discrimination and brought the issue to the attention of Congress.

It all began with an anonymous note addressed to the clinic’s client, Lilly Ledbetter. The letter revealed that Ledbetter had been making nearly 20 percent less than her male counterparts throughout her 19-year career at a Goodyear tire factory in Alabama. After a jury trial found that Goodyear had violated Title VII, which prohibits pay discrimination, the 11th Circuit Court of Appeals reversed the decision, stating that Title VII requires employees to sue within 180 days after the discrimination begins. In other words, Ledbetter was too late.

The question before the Supreme Court, then, rested on when the clock starts. Does the 180-day time limit kick in when the employer initiates the discrimination (sets a salary), as the 11th Circuit Court ruled, or after the last act of discrimination (the employee’s most recent paycheck)? • Moskowitz and his fellow clinic students argued that both were true. Working under the watchful eye of clinic co-instructor and Howe & Russell partner Kevin Russell, lead counsel in the case, students helped draft the petition for certiorari to the Supreme Court.

“I felt like a private investigator,” says Scott Reents ’07, who wrote the petition’s factual statement after sifting through hundreds of pages of trial transcripts. “In doing my research I got the sense that the working environment at Goodyear was from another era. It’s remarkable Lilly stuck it out given the discrimination she was facing.” • The petition was granted and students set to work on two documents: the merits brief and later a reply brief. Moskowitz worked on a section of the reply brief arguing that the court should defer to the Equal Employment Opportunity Commission, which filed an amicus brief in favor of Ledbetter in a lower court. Jennifer Liu, JD/MBA ’07, who also worked on the brief, researched similar cases that were decided in the plaintiff’s favor.

On November 27, 2006, the students were in Washington, D.C., awaiting Kevin Russell’s oral argument before the Court when they met Lilly Ledbetter for the very first time. “She’s a real fighter,” says Liu. 

Supreme Court Litigation Clinic Argues Pay Discrimination Case

In the end, the court decided 5-4 in favor of Goodyear, holding that employees must file a claim within 180 days of a “discriminatory decision” even “if the effects of the initial discriminatory act were not immediately apparent to the worker and even if they continue to the present day.” In a rare move, Justice Ruth Bader Ginsburg read the dissent from the bench.

“It was frustrating,” says Moskowitz. “It seemed like such a big change from how the law had been interpreted for the past 30 or so years.”

“Even though the result was disappointing, it was a great opportunity to participate in an important case,” says Liu, who is quick to point out that the Lilly Ledbetter Fair Pay Act of 2007 was passed by the House of Representatives in late July and is awaiting a vote in the Senate. The act would overturn the Supreme Court’s muchcriticized decision.

“I hope the bill in Congress is some consolation to her that her case has prevailed in the court of public opinion,” says Reents.