Apologies for the long post, but this shit makes me want to vomit.
On April 23, 2008 Congress blocked consideration of the Lilly Ledbetter Fair Pay Act, in a 56-42 cloture vote. (You can see who voted for/against the bill here.) This act was in response to a Supreme Court decision that Lilly Ledbetter, who had worked for Goodyear Tires for nearly 20 years, was not entitled to the $223,776 in back pay and more than $3 million in punitive damages that had been awarded her by a jury of her peers. Ledbetter had received two performance-based awards, yet when she approached retirement, she was informed by an anonymous letter that she was making approx. $560 less per-month than the lowest paid man at Goodyear.
The Supreme Court determined that she was not eligible for the damages awarded because she did not file her lawsuit within 180 days of being issued the paycheck reflecting the discrimination. As Gail Collins of the New York Times points out in a great op-ed column on the subject, “In other words, pay discrimination is illegal unless it goes on for more than six months.” Bullshit.
The legislation in question would have allowed potential plaintiffs to go to court over pay discrimination, even if the requisite six months had passed.
Now the fact that this legislation failed in the Senate is bad enough. It’s rare that employees know what other employees are making, and if they find out, it’s not normally within the first 180 days of their employment. But what makes this all the worse is that presidential nominee John McCain failed to even show up to vote on this important issue.
Think that’s bad? It gets even worse. When asked about his absence, McCain defended his decision, claiming that he wouldn’t have voted for the LLFPA anyway, since it “opens us up for lawsuits, for all kinds of problems and difficulties.” DUH. If women, who currently make an average of $.77 to every $1.00 earned by male employees, were to be able to sue their employers for pay discrimination, there would likely be a lot more “problems and difficulties” for the douchebags who have failed to pay them fairly.
But it gets even worse. McCain went on to claim that women need more “education and training, particularly since more and more women are heads of their households, as much or more than anybody else. And it’s hard for them to leave their families when they don’t have somebody to take care of them.”
Wait a second. In a nation where women make up at least 57% of most college campuses, and where more than half of all associates, bachelors, masters, and doctorate degrees are awarded to women, McCain thinks that we need to get more “education and training”? As far as I know, McCain received no more than a Bachelors Degree, so maybe he’s the one who needs to get a little more education on the issues. (I apologize for the obvious ad hominem, but seriously.)
Apparently John McCain thinks most employed women look something like this:
An an educated woman, I am pissed. If you want to sign the MoveOn.org petition calling out John McCain on this issue, you can go here. They also encourage educated women to upload their anonymous CVs to show JM that we’re not as dumb as we (apparently) look.
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09 May 2008 Pastafari Griff
I have several thoughts.
The ruling was absurd and completely ignores the concept of the “discovery rule,” which is most often found in cases involving a physical injury (ie–personal injury, product liability and work comp cases). However, something resembling the discovery rule should’ve been applied by the court in Ledbetter. But since our court is dying to shore up the law suit revolution in America, they did what they did. Now, it’s not so much that pay discrimination is only illegal for 6 months, but the ruling places the ridiculous burden upon victims of pay discrimination to unearth the discriminatory facts (specifically, that their male colleagues are making more than them) within 180 days of the first discriminatory check that is issued and also file their EEOC claim within that 180-day window. This is essentially impossible for a new employee. Furthermore, there is the concept of a continuing violation commonly found in federal employment law that the court failed to apply. That is, if the employer commits new acts of discrimination over and over, the statute of limitations does not toll until the most recent violation. Under this concept, each new paycheck would be the equivalent of hitting the “reload” button on your statute of limitations. I’ve read the Ledbetter decision and lots of commentary, and I unfortunately reached the conclusion that Ms. Ledbetter hadn’t fulfilled her burden of proof as to discriminatory intent. The employer had issued a couple of poor performance reviews, and she argued that those were the reason why her pay was lower than her male colleagues’ pay. She alleged that the reviews were discriminatory. As you can see, we’re getting into causal layers here. In short, Ms. Ledbetter was not the perfect plaintiff for this case. A case involving direct evidence of discrimination (ie–an e-mail from a supervisor saying that he didn’t want to pay a woman as much as a man) would be much better, but good luck finding that plaintiff. I can also say that I at least understand where the court was coming from when it said, “Ledbetter’s arguments—that the paychecks thatshe received during the charging period and the 1998 raise denial each violated Title VII and triggered a new EEOC charging period—fail because they would require the Court in effect to jettison the defining element of the disparate-treatment claim on which her Title VII recovery was based, discriminatory intent.” (paraphrased from the syllabus of the decision). Ms. Ledbetter never presented any evidence of a discriminatory decision to deny her equal pay (remember, her evidence suggested discriminatory reviews), so she can’t rely on each successive check that may have been discriminatory to toll the statute. It’s something of a circular argument. A paycheck by itself cannot contain an element of discriminatory intent, but a past decision to set pay at a certain level can. It’s all very philosophical…but the result is total garbage.
It should be pointed out that we do have an Equal Pay Act (passed in the 60s, I believe). Ledbetter’s suit was under Title VII of the Civil Rights Act and not the Equal Pay Act. The proposed legislation would have merely amended the statute of limitations interpretation (presumably across the spectrum of federal employment discrimination law).
McCain’s comments are absurd. I have tried in every way possible to figure out how education has anything to do with pay discrimination. It doesn’t. I don’t need another reason not to vote for him…but he’s supposedly the straight-talker. What a joke. But if I wait for a politician to start speaking on logically sound terms, I’ll be waiting a long time. We know what he meant, and that is to reduce the number of law suits over pay discrimination based on gender. In fact, many of the Rs would just prefer to eliminate most or all employment discrimination claims (based on age, gender, race, etc.). These people are out of touch with the realities of the employment world, which is unfortunate, because they legislate it. Hopefully, this issue will not die. W wouldn’t have signed it anyway.
OBAMA ‘08.