What Fresh Hell Is This?

January 23, 2009

Lilly Ledbetter Fair Pay Act May Be the First Legislation Signed by Obama

Now that's change I can believe in!

From the Washington Post:
A wage-discrimination bill that narrowly failed less than a year ago moved closer to becoming law last night, when the Senate passed the legislation and sent it back to the House for final consideration.

The measure, approved 61 to 36, would overturn a Supreme Court decision to make it easier for women to sue employers for pay inequity, regardless of when the discrepancies took place. It may become the first legislation signed by President Obama, who campaigned in favor of it.

The bill, dubbed the Lilly Ledbetter Fair Pay Act, was introduced after a Supreme Court ruling in 2007 rejected a $360,000 award in back pay to Lilly Ledbetter, an Alabama woman who worked for Goodyear Tire and Rubber. Ledbetter had discovered a large gap between her salary and that of her male colleagues, stretching back years.
If you recall, the Supremes decided that Ledbetter should have known from day one that she was making less than her male coworkers -- cause everyone knows that private companies make it sooo easy to find out what folks are getting paid -- and denied her case based on statute of limitations that her claim was 180 days after the discrimination took place (despite the fact that the blatant discrimation was ongoing for the entire length of her employment).

Lilly Ledbetter


Anonymous said...

I believe that the Catch-22 in the Ledbetter decision was this:

She could not file for wage discrimination early in her career, because her employer could have shown that, statistically, she was not underpaid. (Her salary would have fallen within a 95% confidence interval around a similar male employee's salary.)

What she alleged in her case was, sure, she hadn't been badly underpaid in any one year, but, over a career, being a woman had cost her a bundle of money compared to her male counterparts.

And, the SC said that the applicable statutes had clear time limits on them, and, her time to sue had run out.

So, even though she could not have successfully shown discrimination at the time, shw couldn't wait, either.

This new law will redress that awful situation.

Maria said...

My comments were based on Ginsburg's dissent:

Justice Ginsburg dissented from the opinion of the Court,[4] joined by Justices Stevens, Souter, and Breyer. She argued against applying the 180-day limit to pay discrimination, because discrimination often occurs in small increments over large periods of time. Furthermore, the pay information of fellow workers is typically confidential and unavailable for comparison. Ginsburg argued that pay discrimination is inherently different from adverse actions, such as termination. Adverse actions are obvious, but small pay discrepancy is often difficult to recognize until more than 180 days of the pay change. Ginsburg argued that the broad remedial purpose of the statute was incompatible with the Court's "cramped" interpretation. Her dissent asserted that the employer had been, "Knowingly carrying past pay discrimination forward" during the 180-day charging period, and therefore could be held liable.

We both agree that small pay differences over time do add up, especially when we're talking about a 20 year time period, plus it affects her now in terms of how much SS she'll get.

Anonymous said...

My point, which is consistent with the dissent, was that, even if Ledbetter had filed a discrimination suit earlier, it would have failed, because, statistically, her pay and that of men doing similar work would have been equivilent. And, by the time the discrimination was statistically clear, the statute had run.

That's some catch, that Catch-22. And the new law is meant to correct that decision, which virtually institutionalized "UN-equal pay for Equal work."

I don't believe that there's any disagreement with the lead post in that, is there?

EdHeath said...

I don't understand, gtl, your statement has nothing to do with what I have read as the facts in the case (http://www.nytimes.com/2007/05/29/washington/30scotuscnd.html, http://en.wikipedia.org/wiki/Lilly_Ledbetter). First of all, the federal court found in favor of Ms. Ledbetter, so evidently they didn’t apply the framework you suggested. The Supreme Court apparently didn’t care what her pay was in 1979, they only cared that she did not file suit within 180 days of receiving her first pay check. We have no information about whether a filing within 180 days of her first receiving a paycheck would have failed or not, in fact, the court’s ruling implies it would have succeeded. Once Ms Ledbetter waited until after the 180 days had passed, she was implicitly agreeing that she did not care about pay differences, according to the Supreme Court.

I believe that your comment somewhat reverses the situation. If, in fact, she was not being discriminated against in 1979, then the 180 day period she needed to respond within would not apply for 1979. If the pay disparity did not reach a significant level until, say, June of 1983, then the 180 day clock for Ms Ledbetter to file suit would have started in June of 1983. But the Supremes apparently agreed that Ms. Ledbetter had been discriminated against in terms of pay since 1979. And literally punished her for not knowing it.

Anonymous said...


From the SC's decision:

" During most of the time that petitioner Ledbetter was employed by respondent Goodyear, salaried employees at the plant where she worked were given or denied raises based on performance evaluations. Ledbetter submitted a questionnaire to the Equal Employment Opportunity Commission (EEOC) in March 1998 and a formal EEOC charge in July 1998. After her November 1998 retirement, she filed suit, asserting, among other things, a sex discrimination claim under Title VII of the Civil Rights Act of 1964. The District Courtallowed her Title VII pay discrimination claim to proceed to trial. There, Ledbetter alleged that several supervisors had in the past given her poor evaluations because of her sex; that as a result, her pay had not increased as much as it would have if she had been evaluated fairly; that those past pay decisions affected the amount of her pay throughout her employment; and that by the end of her employment, she was earning significantly less than her male colleagues. Goodyear maintained that the evaluations had been nondiscriminatory, but the jury found for Ledbetter, awarding backpay and damages. On appeal, Goodyear contended that the pay discrimination claim was time barred with regard to all pay decisions made before September 26, 1997—180 days before Ledbetter filed her EEOC questionnaire—and that no discriminatory act relating to her pay occurred after that date. The Eleventh Circuit reversed, holding that a Title VII pay discrimination claim cannot be based on allegedly discriminatory events that occurred before the last pay decision that affected the employee’s pay during the EEOC charging period, and concluding that there was insufficient evidence to prove that Goodyear had acted with discriminatory intent in making the only two pay decisions during that period, denials of raises in 1997 and 1998.

Held: Because the later effects of past discrimination do not restart the clock for filing an EEOC charge, Ledbetter’s claim is untimely. Pp. 4–24. "

Sure, the Federal Court found for her, but the Appeals court did not. Neither did the majority in the ultimate decision.

Let me point out, again, that I'm happy that Congress and the new president are correcting this, bad, decision.

EdHeath said...

Well, even as we disagree about the court's reasoning, indeed we can both be pleased Congress is acting, and this Prsident will sign the law correcting the situation.

Clyde Wynant said...

So this "bold action" is to give employees six months to file suit? That's it? That's what we took control of the government to get?

Please tell me how this is "bold?"

Bold would be giving employees, who are consistently screwed, a three year window in which to fight unfair practices. Remember, we're not saying business will lose...only that the ordinary Joe or Jane would have the opportunity to fight. As someone who once went up against a major corporation I can tell you this; your chances are exceedingly slim to begin with...since corporations have high-powered attorney's on staff...and you've only got whatever lawyer you can afford...

The entire system is rigged against normal people. Justice is indeed for the rich. Period. End of discussion.

So excuse me if I'm not impressed by the passage of this. We should have gotten much more!