In an unusual show of good timing, this week -- the week of Equal Pay Day -- the Senate takes up the House-passed Lilly Ledbetter Fair Pay Act (H.R. 2831). It's only been sitting at the desk since July 2007, but better late than never. They'll debate the bipartisan bill, and the make-or-break cloture vote is scheduled for Wednesday (4/23) afternoon -- hopefully at a time when both Clinton and Obama, both original sponsors of the legislation, can get back to town for the critical vote. This civil rights legislation corrects one of the latest missteps of the Roberts Supreme Court – this one coming last May via their controversial split decision in Ledbetter v. Goodyear Tire & Rubber Company.
Color me surprised – the Court’s new majority got it wrong? You mean, they took the first available opportunity to turn a decades old civil rights law on its head? Gee, whoda thunk? (Sorry, I’m still a bit bitter after fighting so hard against the Bush nominees -- only to see the Senate Dems roll over and play dead.) Now, we all get to reap what President Bush and the Senate Democrats have sown by putting Roberts and Alito on the bench for life -- and we're faced with the cheery prospect of cleaning up the mess, decision by decision.
But I digress. Here’s the gist about the Ledbetter Fair Pay Act. For more than 40 years, the courts and the Equal Employment Opportunity Commission have followed the same precedents and policies when interpreting the statute of limitations under Title VII of the Civil Rights Act of 1964. This practice became known as the paycheck accrual rule, and is the simple principle that each paycheck – itself tainted by a prior discriminatory pay decision – is in and of itself another discriminatory act. Thus, a tainted paycheck can restart Title VII’s 180 day clock.
But last spring, the Supreme Court’s Ledbetter decision turned decades of legal precedent on its head and created a new standard: if an employee doesn’t know they’re being discriminated against in the first 180 days, and doesn’t file a pay discrimination claim in that period, then they’re shit outta luck – and the employer is forever immunized from any responsibility for that discriminatory pay decision. Yes, you read that right. The employer can then knowingly – even openly -- continue to pay the employer a less than fair wage, because the 180-day charge period has passed without the employee finding out and filing a charge about the inequitable pay decision. Welcome to civil rights on the Roberts Court.
This new, impractical standard makes it almost impossible for workers to seek justice for pay discrimination. Why? Think about it. The first six months on the job, most folks don’t exactly hang around the water cooler asking their co-workers the intimate details of their pay stubs. It often takes time for this kind of insidious discrimination to make itself known – particularly since so many employers still tell employees they're not allowed to discuss wage issues at work.
That’s exactly what happened to Lilly Ledbetter. She worked for Goodyear in Gadsden, Alabama, as a shift supervisor. Not long before she retired, Lilly discovered that all the other shift supervisors – all male, most of whom hadn’t worked there nearly as long as she had – were making a lot more money than she was. Her bosses wouldn’t talk to her about it, so on her first day off she went to the nearest EEOC office in Montgomery, and filed a claim. It progressed painfully from there – such lawsuits are never a cakewalk – but the system as it was then worked for Lilly. A jury of her peers in that company town decided Lilly had been discriminated against, and awarded her two years back pay (the limit under the statute) and a large punitive award, which was immediately reduced to $300,000 – the statutory cap for sex-based discrimination under Title VII. Lilly was vindicated.
The purpose of the Ledbetter Fair Pay Act is to correct the Supreme Court’s blunder in Ledbetter, and return to the earlier, long established practices in employment law. This is, in fact, what Justice Ruth Bader Ginsberg asked Congress to do in her stinging dissent in Ledbetter -- a dissent she felt compelled to read from the bench to the Court, an unusual action that is a telling barometer of her ire. Critics such as the U.S. Chamber of Commerce and National Federation of Independent Business are throwing around all kinds of distortions, and lobby hard to block the bill. This despite the fact that the paycheck accrual rule wasn't something business groups were clamoring to change prior to Ledbetter. In fact, the issue wasn't even on their radar screen -- the precedent was that established -- but now they don't want to let this unexpectedly juicy plum go.
But don’t let anyone fool you. This bill is a reasonable, narrow fix. Truthfully, advocates could have gone after a bigger bite of the apple – we could have asked for language to increase the 2-year limit on back pay, for example, or to lift the caps on punitive damages. But when you're working in an environment where the Senate has become the place where all good bills go to die -- where it's 60 or bust -- advocates chose to literally just go after a bill that simply turns back the clock. The Ledbetter Fair Pay Act is a time warp of sorts, taking us back to the practices and precedents as they were the day before the Ledbetter decision – no more, no less.
The vote also provides a good gauge of a legislator's position on pay equity issues this election year -- a year when several moderates are running scared of being scored on such votes. A year when pay equity is a top priority for women voters. This issue also is yet another illustration of the importance of judicial nominations and getting a Democrat into the White House. Advocates and Democrats are pretty close to getting the 60 votes we need to move to a final vote on the bill -- close enough to make the Republicans sweat. But it's touch and go, and several moderate and independent-minded Republicans are up for grabs. Also, more conservative Democrats always need shoring up.