In LEDBETTER v. GOODYEAR TIRE & RUBBER CO, the Supreme Court makes it almost impossible for workers who already are paid inequitably to sue for pay discrimination because, as Scalito wrote, "We have previously held that the time for filing a charge of employment discrimination with the Equal Employment Opportunity Commission (EEOC) begins when the discriminatory act occurs [PDF]". Meaning that, if you find out years later (like most people) that you were paid less or passed by for promotions, you are bound by statutes of limitation and thus cannot sue an employer for discrimination retroactively if it is beyond the 180 to 300 days from the time that the discrimination occurred.

From the The ACLU's Amicus Brief :

The ruling below improperly imposes overwhelming burdens on the victims of pay discrimination. Pay discrimination is rarely accompanied by overt bias, and employee salaries are notoriously cloaked in secrecy. Victims thus have difficulty perceiving pay discrimination and, in any event, are unlikely to promptly complain about it. These difficulties are
compounded for employees subjected to discrimination in their starting salaries, when much pay discrimination begins.

A discovery rule, although appropriate for Title VII claims generally, would do little to alleviate these concerns and would turn virtually every pay discrimination case into a messy factual dispute over what the plaintiff knew and when.

Employees governed by the lower court’s ruling will face undue pressure to file first and ask questions later in order to preserve their Title VII rights.
At the same time, the decision below undermines the
incentives for employers to prevent and correct pay discrimination. Because this ruling grandfathers in pre-existing pay discrimination, it creates little incentive for employers to find and correct pay disparities between male and female workers. Instead, it encourages employers to conduct periodic pro
forma salary reviews so as to insulate prior discriminatory decisions from challenge.

Now the Supreme Court has decided that the Department of Labor was OK in making use of a loophole in the minimum wage law to deny retroactive compensation minimum and overtime wages to a homecare worker in the case, LONG ISLAND CARE AT HOME, LTD., ET AL. v. COKE [PDF].

I am particularly interested in discussing this decision in view of the discussion that broke out recently over whether it was OK for Amanda over at Pandagon and other feminist bloggers to denounce homeschoooling as "unpaid labor".

I find it particularly intriguing that the case was decided against Ms. Coke not because her pay was (un)fair. The decision was an administrative one : The Supreme Court upheld the right of the Department of Labor to set a new quasi-legislative interpretation to the law when there was no measure in it regarding homecare workers. In this case, the Supremes decided to uphold the DOL because, administratively speaking, Congress intented for the agency to step up and fill in the gaps laws leave open through time by way of regulatory decision.

"Where an agency rule sets forth important individual rights and duties . . . and where the rule itself is reasonable, then a court ordinarily assumes that Congress intended it to defer to the agency's determination"

So the decision by the Supreme Court didn't address the pay inequity. It addressed the quasi-legislative right of the government agency's decision to deny her pay equity.

BTW, as with Gozales v. Carhart [PDF], women are losing in this court by narrow interpretations and technicalities.

It's the technicalities involving the definition of a homecare worker that intrigue me.

The Department of Labor decided to equate the definition of a homecare worker with that of a companion or chaperone, rendering "unpayable" the kind of work they do. Thus the pay equity exemption.

I have to read again the decision because, honestly, I can't wrap my hear around the idea that someone who ends up taking care of the senile or inform to the point of feeding, bathing and wiping their butts is not doing real work.

We need to take a closer look at this thing we call 'unpaid work/labor' to dissect it properly.