Fair is Fair

When President Obama signed the Lily Ledbetter Fair Pay Act into law last week, which essentially restores a woman’s right to challenge unequal pay, a whole lot of people muttered “It’s about time.”

Demographers had been tracking the disparity since the 1960’s. Early surveys showed that women earned 71 cents for every dollar earned by a man in the same job. Then it went up to somewhere around 80 cents under Clinton and then back down under “W”.  Ledbetter, who worked for Goodyear Tire and Rubber, sued her employer for back pay and had her case go all the way to the Supreme Court.

Dominated by a Republican "rules-are-rules" majority, they ruled against her on a technicality –because she’d filed her claim too late, not because they disagreed with a lower court’s finding that she was indeed wrongfully discriminated against by Goodyear.  Jeesh! This is like your newspaper editor saying he won’t run your exclusive story finally naming who killed Jimmy Hoffa because you didn’t submit your copy on time.

In any event, my sense is that this is somewhat of a Pyrrhic victory. I don’t imagine in today’s crappy economy that the nation’s employers are going to dive into wholesale compensation and benefits analysis to root out inequality just because of the Lily Ledbetter Fair Pay Act.  I think we’re going to have pay disparity for a long, long time to come.

But, I do think that the Act will have a subtle educational impact on our society in general. Ordinary people who finally heard about it on the news last week probably grunted, “Jeeze, I didn’t know that women got paid less than men for the same work.  Hell, that’s not fair.”  And they’d be right.  But for too long it was only the National Organization for Women who was banging the drum on this.  And because of its perceived left-wing tilt, many of these same ordinary folks probably discounted the notion, chalking it up to “femi-nazi” rabble-rousing or some communist plot.

But it’s not; it’s just fair.  And as everyone knows, fair is fair, meaning paying women the same for the same job looks good and is good. I’m pretty sure everyone in the vast middle of American politics will get on board with that.

Comments

[Mark Kiley]

There was no need for the 'Lily Ledbetter Fair Pay Act'. As the majority on the court pointed out, the plaintiff could have sued under the existing Equal Pay Act of 1963, which specifically bans sex discrimination in pay, and has a longer statute of limitations — and broader definition of discrimination — than the statutory provision that the plaintiff sued under. If she had done that, she would have won her lawsuit. Instead, she sued under Title VII which clearly had a 180 day filing limitations for specific statutory reasons put in by Congress. She should sue her attorney for malpractice - hopefully before the statute of limitations runs out.

Statutes of limitations are not "technicalities" but serve a very important role in our judicial system. Without a statute of limitations, someone can sue for very old alleged injuries, and a defendant would not have a fair chance to defend themselves. Memories fade, evidential documents are discarded, people change employers. If an employee can wait until a middle manager of years ago died before accusing the company of discrimination, justice is impossible.

I for one want courts that upholds the law - fair or unfair - if judges can pick and choose which laws they think are unfair we will have anarchy. According to our Constitution it is up to the legislature to change unfair laws.

[Mark Kiley]

Mark makes a lot of good points: she (her lawyer) should have sued under the Equal Pay Act. Her lawyer blew it. But, that wasn't my point and as far as I can tell, my facts are straight. There are a lot of laws and Acts on the books that no one is enforcing or using to plead their case. Prime example are gun laws – we sure don't need any more of them; they just need to be enforced better.

My whole point in this post was around the concept of fairness of equal pay; not on whether statutes of limitations are fair or not. I suspect Mark's passion is around my snarky comment "Republican 'rules-are-rules' Supreme Court" ruling against her on a technicality. And it's likely that if the Sup Court had been dominated by Dems I may have not been so critical. So, I'll own that "snarkyness" and watch out for it in the future.

I very much support Statutes of Limitations and agree wholeheartedly with Mark's argument that they are very, very important. I would however, challenge everyone to consider that when it comes to pay discrimination, the data tells us that it sometimes takes many years for discriminatory patterns to develop to the point that they can be "seen" or are demonstrable in court. Are people then supposed to just live with discrimination because the statutes had run out or their lawyer didn't use the right law? I don't have the answer to that, but it's something that must be considered and I think the only ones who have the chops to consider it are the courts. If they don't, then who?

And when it comes to things being tossed out of court on technicalities, I often hear a lot "law and order" folks rail against judges, the courts and the judicial system when a murderer or rapist is let go because of a technicality such as the cops didn't read them their Miranda rights. Such judges are often labeled activist, or liberal, etc. I would ask folks who are angry at judges for doing that remember that such legal technicalities are on the books for a reason: to protect the innocent from being railroaded by the cops which goes on far more than any of us would care to admit. So, tossing out something on a technicality can be frustrating, but it is the law and we need to respect the judges who follow that law.

Mea cupla on me dissing the Supreme Court.