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.

How Did The Lilly Ledbetter Act Come Into Being?

Siding with Justice Ginsburg, Democrats in the House of Representatives set out to make a law that would codify her position into law. Education and Labor Committee Chairman George Miller wrote that “a key provision of the legislation will make it clear that discrimination occurs not just when the decision to discriminate is made, but also when someone becomes subject to that discriminatory decision, and when they are affected by that discriminatory decision, including each time they are issued a discriminatory paycheck.”

Republicans argued that the bill would hold current managers responsible for decisions that past managers had made, but the Democrats were like, “tough shit,” and passed the bill in the House anyway. It was defeated in 2008 by Republicans in the Senate, but they tried again in 2009, and the bill passed. Barack Obama actively supported the bill, and gave it the symbolic distinction of being the first bill he signed into law. The official White House statement read:

“President Obama has long championed this bill and Lilly Ledbetter’s cause, and by signing it into law, he will ensure that women like Ms. Ledbetter and other victims of pay discrimination can effectively challenge unequal pay.”

It was too late for Lilly Ledbetter to collect any damages, but it’s helped some people since then. “I’ll be happy if the last thing they say about me after I die is that I made a difference,” said Ledbetter of the law’s passage.

Hooray! Now everyone in America will get paid fairly and equally forever! OR WILL THEY?

Criticisms Of The Lilly Ledbetter Act

Leftist that I am, I don’t think this act does nearly enough to advance workers’ rights, and it was a mistake for the House Democrats to sit back and dust their hands off when this bill was really only the very beginnings of progress.

It Doesn’t Help You Find Out If You’re Being Discriminated Against

The most glaring issue I have with it is that it does nothing to empower victims of discrimination to figure out whether they’re being discriminated against in the first place. As of now, companies are under no obligation to disclose how much they’re paying all of their employees, which leaves those who are potentially being discriminated against to ask their co-workers what they are making. This is generally thought of as being a “rude” question, so many never bother to ask. And even when they do ask, many won’t tell, because…well, because they don’t have to! (But also because they have zero worker solidarity.)

But let’s think a little harder. Why is it a rude question? Because bourgeois propriety (which favors bosses over workers) has worked very hard to make it so. Think about it. If you knew how much your co-workers all made, sure, you might be embarrassed that you make more/less than others, but you’d know where you stand, and you’d be in a much better place to file a discrimination lawsuit and/or bargain for higher wages, should you feel the need. Best case scenario, it also encourages worker solidarity. Rather than competing against one another for the boss’s favor, workers can recognize when some of them are being treated unfairly, recognize they have common interests, and band together to enforce change. This takes the decision as to what’s “fair” out of the hands of the bosses and puts it in the hands of the workers. (Where I think most workers would agree they would like it to be.)

It Encourages Individual Action Over Collective Action

Time and time again, we’ve seen that collective bargaining power is much more effective at advancing workers’ rights than individual action. If you only care about your own rights, sure, go ahead and file a lawsuit. You might even win, improving your own isolated lot in life. But if you care about everyone’s rights, and not just your own, you won’t stop there. Even class action lawsuits isolate a single minority from their fellow workers. I realize this is sometimes necessary in the world that we live in, but don’t just rely on the legal system to protect you! Rely on your fellow human beings and your own inherent power as a group. In a system where capitalism is allowed to operate with relatively few restrictions, a single worker doesn’t stand much of a chance against a company. But a bunch of workers put together, fighting for common interests? That sounds significantly more effective. It’s just simple math.

It Does Nothing To Help People Who Don’t Have Jobs In The First Place

The failures of liberal capitalism (even the slightly less profitable, slightly more warm and fuzzy version espoused by Democrats) make even the developed world highly vulnerable to recessions, as we are seeing right now. But I think I’m getting ahead of myself. Tune in next time, when I’ll explain why I no longer believe capitalism is the best or most logical way to organize human society!

Photo: WENN