Pay Discrimination Continues to Be a Problem

BY PAMELA FOOHEY

From left to right

Several professors, professionals, and Lilly Ledbetter, the Supreme Court plaintiff in Ledbetter v. Goodyear (2007) spoke at the law school on Friday, March 7, at the Harvard Journal of Law & Gender’s conference on pay discrimination. As noted by the Journal of Law & Gender, on average, women in the United States are paid seventy-seven cents for every dollar earned by men. This twenty-three cent pay disparity comes from two forms of pay inequity. First, there is discrimination of the form Ms. Ledbetter experienced-when a woman is paid less than a man who holds the exact same job. Second, women tend to hold jobs that pay less than those primarily held by men. This second form of disparity only explains 60% of the pay gap. Accordingly, 9.2 cents of the pay gap cannot be explained by women’s employment choices – even if all their “choices” truly can be deemed choices.

Lilly Ledbetter, a former Goodyear plant manager who worked for Goodyear for nineteen years, was paid a lower salary than her comparable male colleagues for a considerable portion of that time.

Ledbetter spoke first, explaining that she discovered she had been receiving less pay than men who held the exact same job when someone left her an anonymous note detailing how much her male colleagues were being paid. When the anonymous note surfaced, Ledbetter was being paid $15,000 less per year. Ledbetter filed her complaint to the Equal Employment Opportunity Commission (EEOC) within 180-days of receiving her discriminately lower pay, as prescribed by Title VII of the Civil Rights Act of 1964.

Remarking that she proceeded with the lawsuit because her family supported her decision to go forward, Ledbetter acknowledged that the suit had taken a toll on her private life. Ledbetter noted that Goodyear attempted to discredit her during the trial, alleging that she was a poor employee despite having received merit-based employee awards. Nevertheless, when asked if she would do it all over again, Ledbetter stated her answer was “without hesitation, yes.”

As explained by Naomi Schoenbaum ’05, in the Ledbetter decision, the Supreme Court held, 5-4 that Ledbetter could not recover her lost wages because, as a matter of statutory interpretation, pay discrimination began and ended with Ledbetter’s initial paycheck after the alleged pay discrimination occurred, which clearly was issued well after the 180-day statutory period for filing claims. This decision upheld the 11th Circuit’s reversal of Ledbetter’s jury award of back pay (approximately $225,000) and damages (nearly $4 million). The federal jury found that during Ledbetter’s course of employment, several Goodyear supervisors had given her poor work evaluations because of her sex, resulting in Ledbetter’s pay not increasing as much as it would have had she received positive evaluations, and creating a ripple effect through subsequent pay increases, ultimately affecting her pay throughout most of her employment. Justice Ginsburg’s dissent argued that every paycheck should be considered a separate act of discrimination, noting that the majority “does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination.” Ginsberg argued that the majority’s decision established an almost impossible barrier to bringing pay discrimination actions. She also noted that the majority effectively overruled, although they declined to so rule explicitly, another Supreme Court decision that established the “paycheck accrual rule.” In brief, the “paycheck accrual rule” provides that each paycheck is considered a separate act of discrimination, each triggering a new EEOC period during which a complaint can be filed.

Following Ledbetter, there has been legislative effort to amend the Equal Pay Act and Title VII so that other victims of pay discrimination will be able to bring complaints. Jocelyn Samuels, Vice President for Education and Employment at the National Women’s Law Center, explained the proposed legislation, which seeks to restore the status quo before Ledbetter. Prior to Ledbetter, nine out of ten circuits had recognized the “paycheck accrual rule” as the statute of limitations applicable to Title VII discrimination cases.

Melissa Hart, an associate professor at the University of Colorado Law School, concluded the first panel. Hart spoke from the employer’s perspective, noting that until employers are dedicated to fixing pay disparity problems, it is unlikely that much real change will be achieved.

The second panel featured Eileen Boris, the Hull Professor of Women’s Studies at the University of California, Santa Barbara, Monica Ramirez, founder of Esperanza: The Immigrant Women’s Legal Initiative, Bruce Elmslie, a professor of economics at the University of New Hampshire, and Consuela Pinto, Senior Counsel at the Center for WorkLife Law.

Boris focused on the history of equal pay, weaving it into a narrative of women’s history. Boris noted that pay discrimination cannot be understood fully without analyzing its intersections with both race and sex.

Ramirez discussed the experience of low-wage immigrant women, particularly migrant farmworker women, who regularly receive lower pay and less hours of work than male workers, who are laid off more frequently than male workers, and who receive less lucrative opportunities than male workers. Ramirez explained that farmworker women already were unlikely to file pay discrimination claims prior to Ledbetter for a variety of reasons. She noted that the Ledbetter decision only makes it more difficult for these women to bring complaints.

Elmslie focused on pay discrimination based on sexual orientation, applying economics to his inquiry. Elmslie concluded that there is strong evidence of discriminatory treatment against gay males, but virtually no extra discrimination against lesbians in labor market, beyond that which already exists because lesbians are women.

Pinto concluded the second panel with a discussion of the motherhood penalty’s impact on pay discrimination. She explained that motherhood, or the perception of motherhood, is a key trigger of the gender stereotyping that can lead employers, consciously or unconsciously, to discriminate against women.

Both panels were moderated by Steve Churchill, Lecturer on Law and Clinical Instructor in the Employment Civil Rights Clinic at HLS.

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