Why Ledbetter Isn't Enough

The photos said it all. A smiling Barack Obama, center stage, surrounded by not one, not two, but seven beaming women, all celebrating the passage of the aptly titled Lilly Ledbetter Fair Pay Restoration Act. The legislation corrects the 2007 Supreme Court decision that told plaintiff Lilly Ledbetter that she ought to have filed a pay-discrimination complaint 20 years ago, or 180 days after receiving her first discriminatory paycheck. How Lilly Ledbetter would have known she was being paid less than her male counterparts a mere six months after she was hired, particularly when employees at the Gadsden, Alabama, Goodyear plant where she worked knew that sharing salary information was grounds for being fired, the Supreme Court didn't say.

The logic didn't add up, but until last Thursday, the Supreme Court decision stood. Now, thanks to the new law, workers -- all workers discriminated against, not just women -- have up to 180 days from the most recent instance of discrimination to file a complaint. It's a gratifying win for workers' rights. But the truth is that the Ledbetter Act simply restores employment-discrimination law to its pre-Ledbetter v. Goodyear standard. It doesn't actually create new protections for workers, protections Ledbetter herself could have used -- like a prohibition on employer retaliation if workers compare salaries. Another piece of legislation currently working its way through Congress, the Paycheck Fairness Act, would. "That [retaliation] is one of the reasons 20 years go by, and Lilly has no idea she's being paid less," says Fatima Goss Graves, senior counsel at the National Women's Law Center.

The Paycheck Fairness Act closes loopholes in the Equal Pay Act of 1963. Under the 1963 law, employers can claim that a woman is paid less for a reason "other than sex." Employers can argue, for example, that men have better salary-negotiation skills or received a higher salary at a previous job. Paycheck Fairness would require an employer to show discriminatory pay is truly related to job performance. (The law would also develop salary-negotiation training programs for women.) It lifts the cap on punitive and compensatory damages for sex-based discrimination, a cap that doesn't exist for race- or ethnicity-based discrimination. And the law would better facilitate workers bringing class-action lawsuits based on wage discrimination by automatically considering workers part of a class-action unless they opt out.

The statistic that women earn 78 cents to every dollar men earn is frequently brushed aside as being too sweeping to be fully believable. What professions are being compared? What ages? Educational levels? In fact, even when studies control for the key factors that influence earnings, they find a 20 percent wage gap. A 2003 Government Accountability Office study found that, even when years of work, hours worked, and job tenure were taken into account, in addition to other factors like marital status and number of children, women still earned an average of 80 percent of what men earned.

Ledbetter's passage is a relief for Sharon Davis, a university administrator at the University of Connecticut-Storrs who, while doing her department’s budget, realized she was paid less than her white male counterpart. "I'm 61," Davis says. "My life has been very rewarding, and I have been able to move up. I have fulfilled my American dream. So when you find yourself in a discriminatory situation, it takes a long time for you to think, is this what this is?" Davis first filed a complaint with her university's Office of Diversity and Equity last July, and the staff immediately told her that the Ledbetter decision meant the clock had run out on her ability to bring a complaint. Now that Ledbetter has passed, Davis can bring her complaint forward; if Paycheck Fairness passes, Davis' employer won't be able to use the defense that the market required them to pay her male co-workers more.

Dr. Linda Brodsky had been a pediatric surgeon at Children's Hospital of Buffalo and a tenured full professor of otolaryngology and pediatrics at SUNY-Buffalo for 14 years when she realized a less senior male employee was compensated twice what she was. Though she ultimately settled her lawsuit against the school successfully, she says the system of litigation for something that should be required of employers is "an outrage." "Why should I have to be the person who discovers the problem, polices the system, spends a fortune to get my day in court, when the employer can outspend me easily? I think that, like with OSHA, employers should have to prove that they are abiding by the law and that they have fair labor practices."

The Equal Employment Opportunity Commission, Brodsky says, should be a regulatory agency, and employers should be required to submit regular reports about hiring and compensation practices: "We have to take the onus off the employee." While none of the existing fair-pay legislation takes this step, Paycheck Fairness provides the Department of Labor with resources to conduct macro-level studies on compensation so that the responsibility for addressing pay inequity doesn't rest solely with individual employees.

Discrimination against women in the workplace happens across similar jobs within companies, but it also happens in entire fields -- when a heavily female profession generally offers lower wages than a male-dominant profession requiring a comparable skill set. The Fair Pay Act would encourage employers to provide equal pay not just for the same job at a company but equal pay for jobs that are basically equivalent to each other, based on the required level of education or type of physical labor. "Market forces alone won't take care of wage gap," Graves explains. "We need some sort of intervention to ensure that traditionally women's fields aren't devalued just because they're traditionally women's fields."

The Paycheck Fairness Act passed the House alongside the Ledbetter Act earlier this month, but the Ledbetter Act passed the Senate alone. The Fair Pay Act has not yet been introduced in Congress in this session. Now that the high-profile Lilly Ledbetter herself, and the immediacy of the outrage around the Supreme Court decision, are no longer attached to equal-pay legislation, what are the prospects for passage of these critical bills?

"Lilly Ledbetter made it clear [at the bill signing] that she didn't view her work as done," Graves says. "It's very important that Obama and Congress both made a strong statement and quickly got Ledbetter done. And I don't think the public thinks pay discrimination has been cured. The issue is not over."