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There's a lot that has gone terribly wrong in the last eight years.  One thing you might not know about is how fair pay for women went backwards, thanks to the Supreme Court.

But unlike a lot of Supreme Court decisions, this one is reversible by Congress, and it may be one of the first bills taken up by our new 111th Congress this week, along with other important legislation to support fair pay.

The fight over the Lilly Ledbetter Act is about more than fixing one bad Supreme Court case, though.  It is also about whether our civil rights laws can be a meaningful way to protect workers from discrimination, or just legal symbolism.  Because it turns out that even though the law says no pay discrimination based on gender, the burden is on us to enforce it.

Feminisms is a series of weekly feminist diaries. My fellow feminists and I decided to start our own for several purposes: we wanted a place to chat with each other, we felt it was important to both share our own stories and learn from others’, and we hoped to introduce to the community a better understanding of what feminism is about.

Needless to say, we expect disagreements to arise. We have all had different experiences in life, so while we share the same labels, we don’t necessarily share the same definitions. Hopefully, we can all be patient and civil with each other, and remember that, ultimately, we’re all on the same side.

Quick, how much do all your co-workers make?  Do you know if you are being paid the same as others who do what you do?  Who have your same qualifications?  Probably not.  A lot of employers go to great lengths to keep pay information secret.

We know that nationally, the male-female pay gap continues, closing painfully slowly.  Factors like occupational segregation and the glass ceilingmean that women are being systematically underpaid, not just choosing to work less.

That suggests at least some employers may be violating Title VII, the federal law that bans employment discrimination.  But the government isn't going to come in and check up on whether they are meeting their obligations.  It's up to employees to figure out they might be discriminated against, and then file a charge with the EEOC and ultimately a lawsuit.

And because it is so hard to learn about comparable employees, it's hard to get evidence to support your case.  Pay discrimination might go on for years under the radar.

Here's what happened to Lilly Ledbetter, courtesy of Justice Ginsberg's dissent in the Supreme Court case:

Lilly Ledbetter was a supervisor at Goodyear Tire and Rubber’s plant in Gadsden, Alabama, from 1979 until her retirement in 1998. For most of those years, she worked as an area manager, a position largely occupied by men. Initially, Ledbetter’s salary was in line with the salaries of men performing substantially similar work. Over time, however, her pay slipped in comparison to the pay of male area managers with equal or less seniority. By the end of 1997, Ledbetter was the only woman working as an area manager and the pay discrepancy between Ledbetter and her 15 male counterparts was stark: Ledbetter was paid $3,727 per month; the lowest paid male area manager received $4,286 per month, the highest paid, $5,236. See 421 F. 3d 1169, 1174 (CA11 2005); Brief for Petitioner 4.

Title VII has a very short statute of limitations - less than a year and in some states as short as 180 days.  So you need to move fast to file your claim.  But up until 2007, you could have a claim as long as you were still an employee, still being underpaid, and still being injured by discrimination.

In a famous line in a 1972 race discrimination case, Bazemore v. Friday, the Supreme Court said:

Each week's paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII.

A simple rule, that as long as you are continuing to be underpaid, your claim remains alive.  But Justice Alito and a majority of the Supreme Court eviscerated that logic in denying Ledbetter's claim.  Why?  Because one could trace the origins of her low salary to unfair performance reviews in the past, and she should have immediately raced to the courthouse when she got those reviews.  

Dahlia Lithwick sums it up wryly:

For the purely Vulcan reading of the case, Justice Alito's opinion offers some good reading. But for those of you who suspect that gender discrimination rarely comes amid the blaring of French horns and accompanied by an engraved announcement that you are being screwed over, it's worth having a gander at Justice Ruth Bader Ginsburg's dissent.

As Justice Ginsberg explained:

The Court’s insistence on immediate contest overlooks common characteristics of pay discrimination. Pay disparities often occur, as they did in Ledbetter’s case, in small increments; cause to suspect that discrimination is at work develops only over time. Comparative pay information, moreover, is often hidden from the employee’s view. Employers may keep under wraps the pay differentials maintained among supervisors, no less the reasons for those differentials. Small initial discrepancies may not be seen as meet for a federal case, particularly when the employee, trying to succeed in a nontraditional environment, is averse to making waves.

****

It is only when the disparity becomes apparent and sizable, e.g., through future raises calculated as a percentage of current salaries, that an employee in Ledbetter’s situation is likely to comprehend her plight and, therefore, to complain. Her initial readiness to give her employer the benefit of the doubt should not preclude her from later challenging the then current and continuing payment of a wage depressed on account of her sex.

   On questions of time under Title VII, we have identified as the critical inquiries: “What constitutes an ‘unlawful employment practice’ and when has that practice ‘occurred’?” Id., at 110. Our precedent suggests, and lower courts have overwhelmingly held, that the unlawful practice is the current payment of salaries infected by gender-based (or race-based) discrimination—a practice that occurs whenever a paycheck delivers less to a woman than to a similarly situated man. See Bazemore v. Friday, 478 U. S. 385, 395 (1986) (Brennan, J., joined by all other Members of the Court, concurring in part).

Fortunately, Congress is poised to overturn this ruling, and also to enact some other critical fixes to support equal pay.  When the Lilly Ledbetter Act was up for a vote in the spring, Republicans blocked it.  But the House is expected to vote this week on the Lilly Ledbetter Fair Pay Act (H.R. 11) and the Paycheck Fairness Act (H.R. 12)

Let's get it passed this time.

Here's some resources from the National Women's Law Center with background on the case and the bill.

And you can use NOW's Action Center to contact your Members of Congress and urge them to support these two bills which may come up for a vote in the next few days.

Originally posted to Femlaw on Wed Jan 07, 2009 at 07:44 PM PST.

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