House Considers Restoring Pre-Ledbetter Rule
The House Committee on Education and Labor held a hearing today to consider restoring anti-discrimination protections for workers which were removed by the Supreme Court's recent decision in Ledbetter v. Goodyear Tire. In testimony before the Committee, the Leadership Conference on Civil Rights' Wade Henderson made the case against Ledbetter:
Goodyear argued that Ms. Ledbetter filed her complaint too late and, by a 5-4 margin, the Supreme Court agreed. Title VII requires employees to file within 180 days of "the alleged unlawful employment practice." The court calculated the deadline from the day Goodyear first started to pay Ms. Ledbetter differently, rather than – as many courts had previously held -- from the day she received her last discriminatory paycheck. As a result, Ms. Ledbetter was unable to challenge or receive compensation for any of Goodyear's salary discrimination, even though the discrimination continued unabated for more than 15 years.
In this decision, the Court got it wrong. A narrow majority, led by Justice Alito, set aside the clear intent of Congress in favor of its own policy preferences.
The outcome in Ledbetter is fundamentally unfair to victims of pay discrimination. By immunizing employers from accountability for their discrimination once 180 days have passed from the initial pay decision, the Supreme Court has taken away victims' recourse against continuing discrimination.
Moreover, the Court's decision in Ledbetter ignores the realities of the workplace. Employees typically don't know much about what their co-workers earn, or how pay decisions are made, making it difficult to satisfy the Court's new rule.
As Justice Ginsberg pointedly emphasized in her dissent, pay discrimination is a hidden discrimination that is particularly dangerous due to the silence surrounding salary information in the United States. It is common practice for many employers to withhold comparative pay information from employees. One-third of private sector employers have adopted specific rules prohibiting employees from discussing their wages with co-workers, and a significant number of other employers have more informal expectations that employees do not discuss their salaries. Only one in ten employers has adopted a pay openness policy.
Workers know immediately when they are fired, refused employment, or denied a promotion or transfer, but norms of secrecy and confidentiality prevent employees from obtaining compensation information. As Justice Ginsberg's dissent points out, it is not unusual for businesses to decline to publish employee pay levels, or for employees to keep private their own salaries.
The reality is that every time an employee receives a paycheck that is lessened by discrimination, it is an act of discrimination by the employer. The harm is ongoing; the remedy should be too.