• Tue, Nov 6 2012

What Is The Lilly Ledbetter Fair Pay Act, And What Are Its Strengths And Weaknesses?

Lilly Ledbetter

So I’m not voting for Barack Obama. I’ll tell you more about that decision in a few days, after the election hysteria has died down and people are less likely to scream at me. That said, it’s not like he hasn’t done a single thing I agree with during his tenure as president. Hence, in the interest of being nice to my Democrat friends (with whom I share many ideals) on a day that’s important to them, I’m going to talk about one of them, and that’s the Lilly Ledbetter Fair Pay Act. (Warning: I am also going to critique its shortcomings.)

As you may know, the Lilly Ledbetter Fair Pay Act was the first bill Barack Obama signed into law upon becoming president in January of 2009. Basically, the law amends the Civil Rights Act of 1964 to state that the 180-day statute of limitations regarding a pay discrimination lawsuit resets with each new discriminatory paycheck, giving people more time to realize they’re being discriminated against, get a lawyer, and file a lawsuit.

One might think this a fairly logical and not-very-revolutionary stance to take, but do you want to know how long it took for this to be codified into law? I’ll tell you.

Who Is Lilly Ledbetter?

Lilly Ledbetter was a production supervisor at a Goodyear tire plant in Alabama. In 1998, she filed an equal pay discrimination lawsuit under Title VII of the Civil Rights Act of 1964, which states that employers with 15 employees or more may not discriminate on the basis of “race, color, religion, sex or national origin.” Unfortunately, Title VII also set the time limit to file suit at 180 days, and Lilly was six months away from retirement, so her lawsuit’s chances were dubious. She filed anyway.

According to Ledbetter’s suit, when she first started out as an area manager in 1979 (a position mostly occupied by men), her pay was in line with that of her male counterparts. However, as the years went by, she received consistently poor reviews from her bosses, and saw her male colleagues being consistently promoted over her, until she was making a good amount less than even men she had significant seniority over. The reason, she claimed, was gender discrimination.

The suit made it all the way up to the Supreme Court, which did not disagree with a lower court’s decision (by jury) that “more likely than not…[Goodyear] paid [Ledbetter] a[n] unequal salary because of her sex,” but ruled 5-4 that the 180-day window had expired on Ledbetter’s complaint, as the allegedly discriminatory decisions had all been made more than 180 days before she’d filed suit. Therefore, she wasn’t protected by the Civil Rights Act of 1964.

In her dissenting opinion, Justice Ruth Bader Ginsburg made a suggestion that contained the essential idea for the Act as we know it today:

The Court’s insistence on immediate contest overlooks common characteristics of pay discrimination. Pay disparities often occur, as they did in Ledbetter’s case, in small increments; cause to suspect that discrimination is at work develops only over time. Comparative pay information, moreover, is often hidden from the employee’s view. Employers may keep under wraps the pay differentials maintained among supervisors, no less the reasons for those differentials. Small initial discrepancies may not be seen as meet for a federal case, particularly when the employee, trying to succeed in a nontraditional environment, is averse to making waves.

Pay disparities are thus significantly different from adverse actions “such as termination, failure to promote, … or refusal to hire,” all involving fully communicated discrete acts, “easy to identify” as discriminatory. See National Railroad Passenger Corporation v. Morgan536 U. S. 101114 (2002) . It is only when the disparity becomes apparent and sizable, e.g., through future raises calculated as a percentage of current salaries, that an employee in Ledbetter’s situation is likely to comprehend her plight and, therefore, to complain. Her initial readiness to give her employer the benefit of the doubt should not preclude her from later challenging the then current and continuing payment of a wage depressed on account of her sex.

TL;DR: the way the system is currently set up, it can take some time for an employee who is not actively expecting to be discriminated against to figure out they are, in fact, being treated unfairly and file a lawsuit. Therefore, the 180-day statute of limitations should be lifted.

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  • Nicole Diaz Nelson

    definitely with you. you may catch some flak for this but I completely agree that liberal solutions ignore and marginalize deeper/more radical problems. if I didn’t live in a swing state I wouldn’t vote for obama either. yay for lefties!

  • Lastango

    Does this mean you’re going to declare you’re a collectivist, redistributionist Marxist? I’m on the edge of my seat!

  • http://www.facebook.com/profile.php?id=100000589931407 Jerry Boggs

    Its weakness? It’s pointless.

    Consider:

    Here’s just one example of why on average even the most sophisticated, educated women earn less than men even in the exact same profession:

    “In 2011, 22% of male physicians and 44% of female physicians worked less than full time, up from 7% of men and 29% of women from Cejka’s 2005 survey.” http://www.ama-assn.org/amednews/2012/03/26/bil10326.htm

    A thousand laws won’t stop women from CHOOSING to earn less than men in the same jobs.

    In fact, no law yet has closed the gender wage gap — not the 1963 Equal Pay for Equal Work Act, not Title VII of the 1964 Civil Rights Act, not the 1978 Pregnancy Discrimination Act, not affirmative action (which has benefited mostly white women, the group most vocal about the wage gap – http://tinyurl.com/74cooen), not the 1991 amendments to Title VII, not the 1991 Glass Ceiling Commission created by the Civil Rights Act, not the 1993 Family and Medical Leave Act, not diversity, not the countless state and local laws and regulations, not the horde of overseers at the Equal Employment Opportunity Commission, and not the Ledbetter Fair Pay Act…. Nor will a “paycheck fairness” law work.

    Much more at “Will the Ledbetter Fair Pay Act Help Women?”
    http://malemattersusa.wordpress.com/2011/12/03/will-the-ledbetter-fair-pay-act-help-women/

  • Sabrina

    I am absolutely not yelling at you, but am asking this in a totally sincere way out of curiosity. I assume that you are not voting for Romney (?) either, but how do you feel about the argument that a vote for neither is essentially a vote to Romney? In this close of an election race, it seems to me that every vote for Obama is important to prevent a Romney presidency. I understand the importance of voting for someone you believe in and not just voting for the lesser of two evils (I don’t think Obama is the lesser of two evils, I strongly back him) but I wonder if it’s effective/responsible to vote for someone who has no chance of winning (like Roseanne Barr or any of the other people on the ticket) when it’s already so close and there is so much at stake in this election? I ask out of sincerity in hopes to hear your thoughts. And I understand if you wait a few days to explain, etc. :) Also, while I agree with you that it does not do enough, I also think there’s something to be said for progress, for steps in the right direction. There are so many things I want to be done and push for, but with people like Romney pushing back against progress all. the. time. I also recognize that sometimes true change takes baby steps.

    • jamiepeck

      If I lived in a swing state, I would have voted for Obama. I obviously prefer him over Romney. But I live in New York, so I voted for the Green party instead.

    • Sabrina

      Ah, I see. Kudos!

  • kj

    Hellz yeah, Jamie Peck! Can’t wait to hear what else you have to say about this.

    Can I also just say I’m loving the reasonable political discourse around here? It warms the cockles of my bitter, cynical heart to see everyone bringing up valid points without jumping down each’s throats a la “website that rhymes with Rezabel”.

  • Chris Stehlik

    The things you are faulting it with are things it was never intended to solve. It was aimed at fixed a very specific problem. If you fault the Act for not helping unemployed people, you may as well fault it for not settling Syria peacefully or not giving every kid a loving home. The was meant to solve a specific problem.

  • Cori

    Some companies have policy in place where you are not allowed to discuss what you make with co-workers. Mine is one. Acknowledging that I know or have discussed the topic is grounds for losing my job. So it’s not uncomfortable for me to talk about it, but I still can’t do anything about it. I can’t do anything about it unless my supervisor tells me personally.

    • Cori

      Yikes, used “I can’t do anything about it in two sentences in a row.” I guess I’m feeling kinda helpless.