Lilly Ledbetter, the tireless advocate for equal pay, knows firsthand how wage discrimination affects women and their families. Speaking at the Democratic National Convention last week, she reminded the country of her wage discrimination story. Lilly Ledbetter worked for Goodyear for nearly 20 years before discovering that she’d been paid unfairly, losing out on thousands of dollars over the course of her career there. After securing a jury verdict in her favor, in 2007 the Supreme Court determined that she would never receive the lost wages for all those years of discrimination because she didn’t complain about being paid unfairly in her first six months on the job. Less than two years later her namesake bill was passed, restoring the law to ensure that future workers could challenge their unfair pay. Under the Lilly Ledbetter Fair Pay Act of 2009, the time period for challenging pay discrimination begins with the most recent paycheck that reflects unequal wages.
The data released today show that the typical woman is still paid 77 percent of a man’s wages. And when race and sex are considered together, the gap in earnings for women of color are especially stark: African American women make only 64 percent and Hispanic women make 55 percent when compared to white men. This disappointing news is the sort that should spark policymakers to move forward quickly with additional improvements to the fair pay laws. Yet, opponents of fair pay laws are continuing to attack even the Ledbetter Act. In a recent National Review online piece Carrie Lukas shockingly suggests that women are now worse off because of the Ledbetter Act. Never mind that the Ledbetter Act was passed with bipartisan support in both the House and Senate. And never mind that the cases that have been restored since that Act was passed show that the Ledbetter Act had a critical impact. So, as we are faced with the news of a decade of no progress on the wage gap, what’s quite clear is that we cannot waste time revisiting the merits of the bipartisan Ledbetter Act. Below are just a few of the reasons that it is time to move forward on the next step in achieving fair pay – the Paycheck Fairness Act.
The Ledbetter Act restored longstanding law
The rule outlined in the Ledbetter Act, that as long as employees receive discriminatory paychecks they can continue to challenge wage discrimination, restores prior law to that applied by the EEOC and nine of the twelve federal courts of appeals before the Supreme Court’s decision in Ledbetter v. Goodyear. In other words, it put the law back to what everyone thought it was in 2007. With today’s news that the 23 cent wage gap has remained the same over the last decade, there is no doubt that more is required to overcome 10 years of stagnation. And we have yet to move forward with the policies that will actually update the outdated fair pay laws.
Ledbetter Act encourages employers to voluntarily comply with the law
In enacting the Ledbetter Act, Congress took a critical step in encouraging employers to voluntarily comply with the law and not engage in wage discrimination. Even if an employer attempts to conceal pay discrimination, the Ledbetter Act importantly ensured that as long as workers receive a discriminatory paycheck, they could challenge unfair pay practices. But more is required. Under current law, even when women are able to prove discrimination under the Equal Pay Act, the remedies are extremely narrow. Women subjected to sex discrimination currently can receive only backpay under the Equal Pay Act, and under the other law that protects against sex-based wage discrimination, damages are set arbitrarily low. This means that sex discrimination plaintiffs are treated as second class in comparison to those subject to race and national origin discrimination, where there is no arbitrary limit. And this also means that there are too few incentives for employers to voluntarily comply with the law, and engaging in pay discrimination can be simply part of the cost of doing business. The Paycheck Fairness will move the ball forward by ensuring that there are meaningful incentives for employers to comply with the law – a move that is necessary to go beyond this longstanding 23 cent wage gap.
Lilly Ledbetter’s discrimination story could happen in many places given the punitive pay secrecy policies that are common in many private sector workplaces
Lilly Ledbetter was one of the few female supervisors at the Goodyear plant in Gadsden, Alabama. After working there for nearly two decades, she received an anonymous note revealing the much higher salaries of her male coworkers. Goodyear was not a place where it was easy to confirm that you were making less than your coworkers – in fact, Goodyear had a policy that if you talked about your wages you would be fired. Unfortunately, Goodyear is not alone in these policies. All too often, wage disparities go undetected because employers maintain policies that punish employees who voluntarily share salary information with their coworkers. These unfair policies cry out for changes to the law.
Now is not the time to relitigate the merits of the Ledbetter Act
Rather than debating the merits of the Ledbetter Act, which has been in place for over three years (longer than the Supreme Court decision was left standing), the question for policymakers and the public should be the next step in improving fair pay laws. Paycheck Fairness is designed to bring the nearly 50-year old equal pay laws into the 21st Century by addressing some of the root causes of the wage gap and providing incentives for employers to really do the right thing. This law would make it harder for employers to pay women less for the same work, prohibit unfair retaliation against employees who compare their pay, and guarantee that employers who break the law compensate women for the pay they are owed.
Let’s move forward with the Paycheck Fairness Act to ensure that women and the families they help to support do not lose another decade to the wage gap.