By Deborah J. Vagins, ACLU Policy Counsel for Civil Rights and Civil Liberties
I wish I could tell you that today we were going to have a vote in the U.S. Senate to establish a new and ground-breaking civil rights law. In a perfect world, I could tell you we are protecting new groups of employees, removing unfair limitations on damages for our workers, or creating new employment laws for a new workforce.
But I can’t. We are in a fight for the status quo. Don’t misunderstand. It’s a very, very important fight, but one to just preserve the rights we already won in the Civil Rights Act of 1964 and in the years since.
Tonight the Senate is expected to take up the H.R. 2831, the "Lilly Ledbetter Fair Pay Act," which already passed the House of Representatives in July 2007. We applaud the sponsors of this bill, but are saddened by its necessity. The bill is needed in order to fix the damage done by a recent Supreme Court decision, Ledbetter v. Goodyear, which rolled back the protections against pay discrimination that have been bedrock principles of civil rights laws for decades. Before this case, workers could get into court if they could show that they had received a paycheck lessened by discrimination in the last 180 days. Unfortunately, the Supreme Court turned that upside down last year and held that Americans now have only 180 days from the time their employer decides to discriminate against them to file a claim. This standard is nearly impossible to meet. Employers don’t disclose when they decide to discriminate. Why should employees be forced to be discrimination detectives? Even if they should, how could they? In many workplaces, employees are discouraged, if not forbidden, from discussing their salaries. If unscrupulous employers can hide their unfair pay decisions for just a few months, under this new rule, they can never be held to task for discriminating.
The protections in this bill are not groundbreaking, they are not new, and they are not something any senator, or employer for that matter, should shy away from. Far from imposing a new rule on employers, legislation reversing the Ledbetter decision would restore the well-understood law that prevailed in the majority of federal circuits and the policy of the EEOC under both Democratic and Republican administrations before the Supreme Court’s ruling. Indeed, the Senate has a proud history of passing our major civil rights laws with strong bipartisan majorities. From the Civil Rights Act of 1964, which passed with 73 votes, to the Civil Rights Act of 1991, which passed with 93 votes, the Senate has repeatedly come together to do the right thing. Civil rights should not be a partisan issue.
The injustice done to Lilly Ledbetter and other victims of discrimination has no party affiliation. In these tough economic times, Congress and the president should be doing all they can to help American workers earn, and keep, their fair wages. The ACLU hopes that every worker will help stop this rollback of their rights and urge their senators this afternoon to support this modest bill. As the New York Times said today, this bill "poses a test of each senator’s commitment to combating pay discrimination." We certainly will be watching.