All I Want For Equal Pay Day Is . . .
by Fatima Goss Graves, Senior Counsel at the National Women’s Law Center
April is now here — the Cherry Blossoms are blooming in D.C., warmer weather has returned, and many are at least thinking about spring cleaning. April is also a time for commemorating Equal Pay Day. Equal Pay Day is observed in April to mark the point in each year at which an average woman’s wages finally catch up to the wages earned the year before by the average man. And this year women, who make 77 cents for every dollar a man makes (63 cents for African American women and 52 cents for Latinas), reach that point on April 22nd.
I’ve already decided what I want for Equal Pay Day. True, typically gifts are not exchanged — indeed, if there were a gift it would be finally closing the wage gap so that Equal Pay Day would no longer be a necessary commemoration. But this year workers are still reeling from the Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co. from last term and so a shorter term gift is in order.
Just a bit of background on the decision — for many years, the supermajority of courts (indeed, 9 of the 10 courts to consider the issue) and the EEOC applied a commonsense rule to pay discrimination claims: each paycheck renews the discrimination and the statute of limitations. Then came Ledbetter. Lilly Ledbetter spent close to 20 years at Goodyear receiving pay that was far less than the amounts earned by male co-workers performing the same job. But she did not have firm evidence of discrimination until very close to the time she retired, when she received an anonymous note informing her of the pay discrimination. Nonetheless, last May the Supreme Court ruled 5-4 that employees have only 180 days after the first discriminatory paycheck to file a formal complaint, even when the discrimination persists to the present time and even when employers continue to gain a windfall from it.
The Ledbetter decision turned the longstanding circuit court and EEOC rule on its head. Not only is it unworkable (pay information is often confidential and, unlike other forms of discrimination, paychecks are not announced, or treated by employees, as adverse employment actions), but it also provides incentives for employers to hide discriminatory pay decisions for the first six months, hoping to then discriminate free of charge.
Last summer the House of Representatives responded swiftly by passing legislation to restore the law to the way it has always been. The Senate introduced similar legislation in the Fair Pay Restoration Act. The Act makes clear that compensation discrimination claims accrue whenever a discriminatory compensation decision or practice is adopted, when a person becomes subject to the decision or practice, or when a person is affected by the decision or practice, including whenever he or she receives a discriminatory paycheck. This legislation would ensure that workers are protected from workplace discrimination as Congress intended.
The National Women’s Law Center has more information on how you can help commemorate Equal Pay Day or participate in the Fair Pay Campaign. Lawyers and law students can also get involved here.
Written By:Hans Bader On April 7, 2008 12:02 PM Written By:ACSLaw On April 21, 2008 6:09 PM
Written by: Fatima Goss Graves
Thanks for your comment. To quickly summarize, it seems that you're arguing that because the Equal Pay Act and Section 1981 also provide protection against pay discrimination, there is no reason to address the evisceration of Title VII pay discrimination claims. I must disagree.
First, I think it may be helpful to clarify what the Fair Pay Restoration Act would (and would not) accomplish.
* The Fair Pay Restoration Act (like a similar act already passed by the House) would not alter Title VII's statute of limitations. The 180-day charge-filing period would remain and employees seeking to file claims under Title VII would continue to be subject to these limits. So what change would it make? Well, it would clarify the conduct that triggers the running of the 180-day clock. Under the legislation, if an employee wants to challenge discriminatory pay, he or she must file within 180 days of the discriminatory conduct. This means some employee's cases will continue to be dismissed if their claims are untimely. But it also would return Title VII pay discrimination claims to the enforcement practices that had been in place for many, many years.
* In addition, this is a pretty narrow bill. It does not address Title VII claims that are unrelated to pay decisions. Instead, the conduct described under the bill would include salary-setting decisions and employment practices that determine an employee's pay.
Second, I think it may be helpful to describe briefly the difference between the Equal Pay Act and Title VII. They are not interchangeable. For example, before a plaintiff may even proceed with an Equal Pay Act he or she must meet an incredibly high (and indeed inappropriate) burden of proof -- the plaintiff must demonstrate that the jobs being compared are substantially equal. Unfortunately some courts have taken this language and required plaintiffs to prove that the jobs were nearly identical. In addition, the Equal Pay Act provides four affirmative defenses through which an employer may justify a wage disparity between substantially equal jobs. And unfortunately, these affirmative defenses have become gulf-sized loopholes for employers to escape compliance with the Equal Pay Act. Finally, successful plaintiffs who challenge sex-based wage discrimination under the Equal Pay Act may receive only back pay and, in limited cases, an equal amount as liquidated damages. Compensatory and punitive damages (available under Title VII, although capped) are not available.
There are other limitations to the Equal Pay Act, which could be remedied by the Paycheck Fairness Act or the Civil Rights Act of 2008. Perhaps I should have been more specific in my post -- a dream request for Equal Pay Day would be the swift passage of all three bills. But for now, my only April request is that the travesty of the Ledbetter decision be remedied.
we write about equal rights for career women everyday in our blog www.theglasshammer.com
the reality of professional services especially wall street is that compensation is a covert area and if women are always in support roles then managers can justify less pay
This post is only partly true, and accordingly the law doesn't need to be changed (and the so-called Fair Pay Restoration Act isn't necessary).
Ledbetter did NOT prevent female employees from suing more than 180 days after their pay was set at a discriminatory level, since the Equal Pay Act allows an employee to sue up to three years after the date of discrimination.
Ledbetter only said that the federal law with the shortest deadline for suing -- Title VII -- would be enforced as written, meaning that if an employee chooses to sue under Title VII rather than the Equal Pay Act, the employee will face the deadline under Title VII (often 180 days) rather than the much longer Equal Pay Act deadline (which runs in years rather than days).
Under current law, people facing gender discrimination in pay can sue up to 3 years after the discrimination under the Equal Pay Act.
And people facing race discrimination in pay can sue up to 4 years after the discrimination under 42 USC 1981.
But if you want to sue in federal court over gender discrimination involving something other than pay, you have to sue not under the Equal Pay Act, but rather under Title VII, which does have a shorter deadline (180 or 300 days, depending on the jurisdiction).
That shorter deadline makes sense, since Title VII covers not just pay discrimination, which can take many months to detect, but discrimination that is much easier to detect, like being fired (which is something you often learn about immediately).