Friday, February 3, 2012

Feminism Friday: Lilly Ledbetter's Legacy

If Lilly Ledbetter’s name sounds a little familiar, it may be because you have heard of the Lilly Ledbetter Fair Pay Act.  Ledbetter was a long-term employee of the Goodyear Tire Company who learned near the end of her employment that she was being paid significantly less than her male counterparts (and all of her counterparts were male).  
In Ledbetter’s words: “…after 19 years of service at a Goodyear factory, someone left an anonymous note in my mailbox listing the names and salaries of my male coworkers -- who I learned that day were making at least 20 percent more than I was, even though many had less education, less training, and fewer years on the job.”  She initiated a wage discrimination case under the Equal Opportunity Employment Act, and won in a lower court.  Goodyear appealed on the basis that the discrimination had happened outside of the 180-day statute of limitations.  Eventually, the case made its way to the Supreme Court, which ruled five to four in favor of Goodyear.
The catch, of course, was that she didn’t know she was being paid less than her co-workers, and never would have known, had it not been for that anonymous tip.
In an article regarding the legal implications of the case, attorney Richard E. Levine writes, “The Court's majority, comprised - not surprisingly - of Chief Justice Roberts and Justices Alito (who wrote the majority decision), Scalia, Kennedy and Thomas, noted, in passing, that Ledbetter ‘did not realize for some time that she had been victimized,’ but found that fact immaterial.”
Justice Ruth Bader Ginsburg wrote the dissent for the minority—herself and Justices Stevens, Souter, and Breyer.  She read the dissent from the bench; I remember hearing a clip of it and thinking I could hear the outrage in her voice.  She wrote, in part,
“Ledbetter’s evidence demonstrated that her current pay was discriminatorily low due to a long series of decisions reflecting Goodyear’s pervasive discrimination against women managers in general and Ledbetter in particular. Ledbetter’s former supervisor, for example, admitted to the jury that Ledbetter’s pay, during a particular one-year period, fell below Goodyear’s minimum threshold for her position. Although Goodyear claimed the pay disparity was due to poor performance, the supervisor acknowledged that Ledbetter received a “Top Performance Award” in 1996. The jury also heard testimony that another supervisor—who evaluated Ledbetter in 1997 and whose evaluation led to her most recent raise denial—was openly biased against women. And two women who had previously worked as managers at the plant told the jury they had been subject to pervasive discrimination and were paid less than their male counterparts. One was paid less than the men she supervised. Ledbetter herself testified about the discriminatory animus conveyed to her by plant officials. Toward the end of her career, for instance, the plant manager told Ledbetter that the “plant did not need women, that [women] didn’t help it, [and] caused problems.” After weighing all the evidence, the jury found for Ledbetter, concluding that the pay disparity was due to intentional discrimination.    
Yet, under the Court’s decision, the discrimination Ledbetter proved is not redressable under Title VII. Each and every pay decision she did not immediately challenge wiped the slate clean. Consideration may not be given to the cumulative effect of a series of decisions that, together, set her pay well below that of every male area manager. Knowingly carrying past pay discrimination forward must be treated as lawful conduct. Ledbetter may not be compensated for the lower pay she was in fact receiving when she complained to the EEOC. Nor, were she still employed by Goodyear, could she gain, on the proof she presented at trial, injunctive relief requiring, prospectively, her receipt of the same compensation men receive for substantially similar work. The Court’s approbation of these consequences is totally at odds with the robust protection against workplace discrimination Congress intended Title VII to secure.”
Ginsburg pointed out the obvious: wages are typically secret.  Wage discrimination builds over time.  A person cannot sue for discrimination that is hidden from them, and the 180-day limit prevents that person for accumulating evidence over a time period sufficient to demonstrate a pattern of discrimination.  She also pointed out that the Court’s ruling effectively meant that any company guilty of wage discrimination only had to hide it for 6 months in order to escape consequence.
Ledbetter was earning $6,708/year less than the lowest-paid man in her classification, and $18,108/year less than the highest paid man.  Let’s assume Lilly was an average performer, and let’s assume this took place over 10 years—slightly more than half her 19-year tenure with Goodyear.  That differential would have equated to over $120,000 of wages—not “lost” wages, but stolen. 
I mention all of this because Ledbetter initiated her EEOC case in 1998.  The Supreme Court handed down its ruling in 2007.  In 2009, the Obama administration signed the Lilly Ledbetter Fair Pay Act—its first piece of legislation—into law in order to address the issues raised by the case. 

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