Greenhouse notes: “As with an abortion ruling last month, this decision showed the impact of Justice Alito's presence on the court. Justice Sandra Day O'Connor whom he succeeded, would almost certainly have voted the other way, bringing the opposite outcome.”
Justice Ruth Bader Ginsburg (whose “vigorous dissenting” opinion was joined by Justices John Paul Stevens, Stephen G. Breyer, and David H. Souter) argued that
the majority opinion "overlooks common characteristics of pay discrimination." She said that given the secrecy in most workplaces about salaries, many employees would have no idea within 180 days that they had received a lower raise than others.
An initial disparity, even if known to the employee, might be small, Justice Ginsburg said, leading an employee, particularly a woman or a member of a minority group "trying to succeed in a nontraditional environment" to avoid "making waves." Justice Ginsburg noted that even a small differential "will expand exponentially over an employee's working life if raises are set as a percentage of prior pay."
Apparently Senator Hilary Rodham Clinton has said she intends to propose legislation to address this evisceration of Title VII protections. But we shall see.