Restoring Fair Pay

Antoine Morris

Restoring Fair Pay

As the fruitless debate about who deserves more credit for the passage of the 1964 Civil Rights Act fades, civil rights advocates and law makers alike need to focus on repairing the damage done to it by a recent Supreme Court decision. Last May, in Ledbetter v. Goodyear Tire and Rubber Co., the Supreme Court in a 5-4 decision sided with big business at the expense of the rights of workers by severely limiting the time period in which employees may sue for pay discrimination.

For nearly 20 years, Lilly Ledbetter was paid less than men who had less seniority than her at a Goodyear plant in Alabama for doing the same job. As soon as she received an anonymous note that made her aware of the discrimination, Ms. Ledbetter filed a compliant with the Equal Employment Opportunity Commission. A federal court agreed Ms. Ledbetter was being discriminated against and a jury awarded her $3.8 million in damages and back pay before the judge reduced the amount to $360,000 due to a damages cap prescribed by the law.

A narrow majority in the Supreme Court, however, overturned that ruling. The 1964 Civil Rights Act says a plaintiff must file a complaint within the 180 days “after the alleged unlawful employment practice occurred.” Historically, the Supreme Court and lower courts understood that this provision to mean that employees could sue within 180 of receiving a discriminatory paycheck since each check represented a related yet distinct instance of discrimination in a series of discriminatory acts.

Justice Alito disagreed. In writing for the majority, he found Ms. Ledbetter should have filed her suit with the EEOC within 180 days of the original decision to pay her differently. “Current effects alone cannot breathe life into prior, uncharged discrimination,” declared Justice Alito. But this narrow understanding of the law renders it virtually impotent as a means of combating egregious discrimination.

Justice Ginsberg argued in her dissent that the majority was turning a blind eye to the realities of the workplace. Disparities in pay due to discrimination frequently occur in small increments across time, and many workers are pressured to keep salary information private – thus making it extraordinarily difficult for most employees to realize they’ve been discriminated against until well after the original decision has been made.

Wade Henderson of the Leadership Conference on Civil Rights also noted, “One-third of private sector employers have adopted specific rules prohibiting employees from discussing their wages with co-workers, and…[o]nly one in ten employers has adopted a pay openness policy.”

As a result, ordinary Americans are already feeling the brunt of the Ledbetter ruling. According to Alliance for Justice, recent federal court decisions relying on Ledbetter have already adversely affected plaintiffs in cases involving racial discrimination, fair pay for older workers, women in athletic programs, and access to certain facilities for people with disabilities.

But it seems as if the tide may be turning soon. Today, Lilly Ledbetter will be testifying before the Health, Education, Labor, and Pensions Committee in the Senate in support of the Fair Pay Restoration Act. The bill explicitly codifies into law the pre-Ledbetter understanding of the 1964 Act, and allows victims of pay discrimination to sue within 180 days of a discriminatory paycheck and to recover up to two years of back pay. And the House already passed a similar bill last year.

More importantly, the bill tries to remain faithful to the spirit of the 1964 Civil Rights Act by effectively protecting workers from discrimination based on age, sex, race, national origin, or disability. Interestingly enough, Ms. Ledbetter herself conveyed how fair pay is as much of a middle class issue as it is a matter of labor and civil rights, when she said:

What happened to me is not only an insult to my dignity, but it had real consequences for my ability to care for my family. Every paycheck I received, I got less than what I was entitled to under the law. The Supreme Court said that this didn’t count as illegal discrimination, but it sure feels like discrimination when you are on the receiving end of that smaller paycheck and trying to support your family with less money than the men are getting for doing the same job. And according to the Court, if you don’t figure things out right away, the company can treat you like a second-class citizen for the rest of your career. That isn’t right.