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. Morgan, 536 U. S. 101, 114 (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.