Discriminatory pay-setting decisions can present unique challenges to both employees and employers. One of the chief problems created by such decisions is delay: the cumulative and often secretive nature of discriminatory pay-setting decisions can cause large lapses of time between the decision and when employees begin to feel they are being treated unfairly. This lapse of time can also cause unfair prejudice to employers, who may no longer have sufficient access to the facts and knowledge of the circumstances necessary to mount a defense. Facially neutral "merit-based" compensation systems can often be subjective, leaving plenty of room for employer bias and prejudice to manifest itself in the form of discriminatory pay-setting decisions. One isolated discriminatory pay-setting decision made early in an employee's career may set the basis from which all subsequent non-discriminatory compensation decisions are made. Therefore, one isolated decision can continue to adversely affect an employee's compensation for years thereafter. Particularly in the context of large institutions, the passage of time from the initial discriminatory decision can undermine the ability of present employers-who may feel no discriminatory animus towards the employee-to detect the past wrong.

In Ledbetter v. Goodyear Tire and Rubber Co.,1 the United States Supreme Court held in a 5-4 decision that plaintiffs bringing claims under Title VII of the Civil Rights Act of 19642 may not impute intent from past discriminatory pay-setting decisions in order to make the present effects of such decisions independently actionable.3 Ledbetter had alleged that a series of discriminatory pay-setting decisions spanning her 19 year career had resulted in her being paid considerably less than her male counterparts. 4 The Court held that pay-setting decisions are properly characterized as "discrete acts" as defined by National Railroad Passenger Corp. v. Morgan,5 and must therefore be reported to the Equal Employment Opportunity Commission (EEOC) within the statutory filing period, which is 180 days. 6 If indeed the Court in Ledbetter made a zero-sum classification of pay setting decisions as discrete acts, it misinterpreted the subtle command of Morgan, which was that a court should find that an act of discrimination is discreet when an employee is capable of identifying the conduct as discriminatory and actionable. This Note will show the reader that, depending on the circumstances in which they arise, pay-setting decisions may be properly characterized as either actionable "discrete acts" or "hostile work environment" claims under Morgan. Part II will provide the necessary background for this assertion, beginning with a brief overview of Title VII and then addressing the Court's use of intent in Title VII and other areas. Part II will also highlight the important implications of the Court's Title VII cases leading up to Ledbetter. Part III will lay out the procedural background of Ledbetter and then set forth the holdings of the Supreme Court, noting the arguments of both the majority and the dissent. Finally, Part IV will examine the consequences of a shift in Title VII jurisprudence that took place after Ledbetter brought her claim, but before the Supreme Court granted certiorari. Also in Part IV, the precise language of the holdings in Ledbetter will be contrasted with the Court's precedent in order to determine if the door has indeed been closed on plaintiffs who wish to bring Title VII discrimination actions for pay-setting decisions that span careers of several years.