Keep the Courthouse Doors Open and Our Wages at Home

April 18, 2008

Guest Post by Deborah J. Vagins, ACLU Policy Counsel for Civil Rights and Civil Liberties

[Editor’s Note: There were quite a few troubling Supreme Court rulings last year, but one of the more striking decisions was in Ledbetter v. Goodyear, in which the court ruled 5 to 4 that workers who face wage discrimination only have 180 days to challenge the initial discrimination in court. A legislative remedy is under consideration in the Senate right now, and my friends at the ACLU are trying to help generate attention for the pending legislation. -CB]

Do you know exactly how much your co-workers make? If you got a raise recently, do you know how it compares to your colleagues? The Supreme Court believes you do. But if your employer is unfairly paying your co-workers more — and you don’t find out soon enough — you may be deprived of wages to which you are entitled for the rest of your time at that job. Sound unfair? It is. But the U.S. Senate may be able to do something about it next week.

Last May, the Supreme Court ruled in Ledbetter v. Goodyear that employees who have suffered years of discrimination can’t have their day in court, if they don’t discover the discrimination within 180 days of their employer’s initial discriminatory pay decision.

The Ledbetter decision not only reversed years of employment law, it also ignored the realities of a workplace. Often employees don’t know what their co-workers are paid. In fact, only one in ten private sector employers has adopted a pay openness policy and companies often prohibit employees from sharing wage information at all. An expectation that an employee learn that information within the first 180 days of a pay decision is unreasonable.

Unless Congress intervenes, companies will be able to discriminate for years and unjustly profit from paying women, minorities, the elderly, and people with disabilities less, as long as it keeps the discrimination secret for a few months.

In other words, if a company is discriminating in its wages and hides it for just a few short months, it can pay women less than men, blacks less than whites, older workers less than younger ones, and so on, and so on, with absolutely no accountability. Ever. They can hurt workers and their families, and just pocket the money.

Last July, the U.S. House of Representatives passed H.R. 2831, the “Lilly Ledbetter Fair Pay Act,” to correct this problem, and to ensure employers do not profit from years of discrimination based on race, color, religion, sex, national origin, age, and disability, simply because their employees were unaware of the discrimination for 180 days. The bill clarifies this wage discrimination is not a one-time occurrence, but rather, that each discriminatory paycheck an employer issues represents an ongoing violation of the law.

In order to expedite the legislative process, the Senate is now poised to take up the same House bill and vote on it as soon as this Wednesday, April 23. The time has come for the Senate to correct this wrong and let American workers keep their hard-earned dollars. In this time of economic belt-tightening, we need the Senate and the president to help our nation’s employees keep their rightful wages.

“Do you know exactly how much your co-workers make?”

I have never understood Americans’ paranoia about revealing how much they make. Maybe I just don’t take money seriously enough – an occupational hazard of academics? Washington State requires that all public institutions make salary information available. At my old university in Bellingham WA faculty salary information is kept on open shelves in the campus library. Any colleague, any student or member of the general public for that matter, can look at any individual faculty salary at any time. What’s the big deal?

Sometimes I think we’d all be better off if we remembered that when our country was founded the largest city in it was Philadelphia, population 30,000 (a third the size of Bellingham). All the secrecy we insist upon – in voting, jury/venue selection, police work, medical records, and so on – would have come as quite a surprise to the small-town rural local yokels we call our Founding Fathers.

  • I think the Supreme Court decision was correct.

    Congress wrote and the President signed a stupid bill that became the law of the land.

    You can’t expect the Supreme Court to overrule a clear law just because the law is stupid.

    It is absurd that you only have 180 days to sue but that is clearly what the law says.

    I can’t understand why you can’t get a huge majority of both houses to quickly write a bill to correct this misteak.

    Does anyone know who is responsible for the lack of Congressional action?

  • I am a diabetic and when my mother died, with all of the traveling back and forth for her illness and subsequent death, my health took a turn for the worse, of course. My employer at the time had the nerve to tell me that if I couldn’t keep my diabetes under control, then I didn’t have the self-discipline to move ahead in the firm. Nevermind that 90% of the time it is under control. I could’ve sued for discrimination, but having been the employer who was sued for wrongful termination at an earlier point in my career, I saw what attorneys do to people who bring suits. It isn’t pretty. To even get to the Supreme Court, the woman would have had to survive blatant character assassination among other things. Then to think what they did to her, they should all be guillotined.

    My grandfather was a coal miner who fought the Pinkertons for a union. It hasn’t gotten much better for the employee in this country, I’m afraid.

  • Can you pay someone less just because they’re too lazy to apply for other jobs?
    How about if they smell a little?

    Companies pay as little as they can to their employees without losing them.
    If they’re paying someone less than they should, it is because they won’t feel so bad if that person leaves. It seems odd that any company that would hire enough minorities or women (I guess men working at Curves might apply too) in order to find a statistical rationale for prosecution would harbor ill will towards said minority/sex. Why hire in the first place?

    I’m open to arguments, but I don’t yet understand this particular wish for the courts to intervene in the free market.

  • If they’re paying someone less than they should, it is because they won’t feel so bad if that person leaves. It seems odd that any company that would hire enough minorities or women (I guess men working at Curves might apply too) in order to find a statistical rationale for prosecution would harbor ill will towards said minority/sex. Why hire in the first place?

    Because you can pay less for the same work. Is it that confusing?

  • Congress wrote and the President signed a stupid bill that became the law of the land.

    You can’t expect the Supreme Court to overrule a clear law just because the law is stupid.

    It is absurd that you only have 180 days to sue but that is clearly what the law says.

    Is it clear? The case did go to the Supreme Court after Goodyear appealed(Ledbetter won on a lower circuit), and was decided 5-4. That alone indicates to me that it might not be clear, and that thinking people can disagree about the law.

    Do you agree with the majority decision that the discrimination only occurred at the initial salary level, and was not continued over 20 years where her salary was kept lower than everyone else in her position?

  • I agree with Ed Stephan, @1; American secrecy about pay-scale borders on paranoia. We all wold be much better off if everyone’s earnings were out in the open; the employers would be much less likely to trick people on the subject, and the employees would be much less likely to have to resort to courts.

    2weary4outrage, @4,

    Your “too lazy to apply for other jobs” might work in a market like immediately after WWII, when labor was scarce. But, in a market which is laying off 72K people a week? Are you crazy? You manage to get *any* job which will allow you to subsist and you’re happy. If you can, you get another like it and maybe your kids will have shoes as well as food. And, if you’re really lucky, you work three such piddling jobs and get a pat on the head from our Clueless George for being a true American, with an indomitable spirit. Kinda opposite of McCain, come to think of it 🙂

    I think, part of the problem is that women are used to being paid little, so they don’t realize they’re being paid less — for the same job — than their male counterparts. And part of it is that, while one does realize that an employer will want to maximize his profit by minimizing yours, many people don’t think he’d be cheezy enough to do it on an individual basis. So you agree — for many reasons — to what you’re offered and may not know for years, that you’ve been had.

    Open pay scales, either within each company, or nationally (if we can have a national minimum pay, why not a national pay scale?) would solve many such problems. Optimally, I’d not want for people to even have to sue for discrimination and they wouldn’t have to, if they were armed with info prior to accepting the terms. But, for the time being… Keeping the courtroom doors open might be the only fair way of dealing with the situation.

  • It’s not exactly a “free market” if employees don’t know their own fair market value (by knowing what other employees make). It doesn’t help either that employers frequently advertise that applicants must state their “desired salary” and/or “salary history” giving employers valuable market data while the employee remains pretty much in the dark as to what the going rates are.

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