I thought this was as good a place as any to store the text of a talk I gave yesterday at the Bartlett Democratic Club. Maybe it can be of use to others...
Lilly Ledbetter worked for the Goodyear Tire and Rubber Company in Gadsen, Alabama from 1979 until her retirement in 1998. Married and a mother of two, she worked so that she and her husband could send their children to college and she worked so that they could retire with some security and dignity. As one of only a small number of women supervisors (by the time she retired she was the ONLY female supervisor) at the plant, she worked twelve, and sometimes up to eighteen, hours a day in an environment where her bosses were openly hostile to women working in a position held historically by men. Lilly, like all the supervisors, had annual reviews that determined any salary adjustments or merit raises she might receive. The policy at the plant was that salary information was confidential, so Lilly didn’t know what her peers were paid.
In 1996 Lilly received a “Top Performer” award from Goodyear, yet in 1997 she was paid $3,727.00 a month, while the lowest-paid of the men doing similar work was $4,286.00 a month. Some of the men who worked under her supervision were paid more than she was.
Ms. Ledbetter did establish in court that gender discrimination is what drove the pay differential, not performance inadequacies on her part, and the Supreme Court did not dispute that finding.
You know, this is when I wonder, “Why?” It doesn’t make sense to me that an employer would risk a lawsuit to save a few bucks on worker pay. Justice Ginsburg put that into perspective for me. She reminded me that the odds are in the company’s favor, since the odds are good that the suffering employee will never find out – it’s an easy way to save money, especially since you save proportionally more and more each year, and the reduced salary will lead to reduced benefits and retirement. Huh. Must be why I’m not management…
Despite her suspicions, Ms. Ledbetter only found evidence of the pay disparity, in the form of an anonymous tip, shortly before her retirement and she filed suit immediately after retiring. She prevailed in District court, with the jury awarding back pay and damages. Goodyear appealed to the Eleventh Circuit, which reversed the decision, agreeing with the company’s assertion that the claim was time-barred – that any claim had to be made within six months of the first act of discrimination. This was the finding upheld by the majority on the Supreme Court.
This decision went against the court’s own precedent, and to the Congress’s own stated intent in passing the Civil Rights Act. Justice Ruth Bader Ginsburg took the unusual step of reading from the bench the dissenting opinion of the four justices in the minority, in which they essentially called upon Congress to take steps to clarify the law.
H.R. 2831, sponsored by Rep. George Miller, was introduced on June 22, 2007 and passed by 225-199. Congressman Young, to his credit, voted in favor of the House bill.
Senator Edward Kennedy introduced S 1843 on July 20th, with 14 cosponsors from both sides of the aisle.
In his continued ideological assault on workers’ and civil rights, President Bush threatened to veto the Lilly Ledbetter Fair Pay Act if passed into law. The president’s statement of explanation of his threat brazenly misrepresents the bill.
President Bush said in his statement:
...H.R. 2831 purports to undo the Supreme Court’s decision of May 29, 2007, in Ledbetter v. Goodyear Tire & Rubber Co. by permitting pay discrimination claims to be brought within 180 days not of a discriminatory pay decision, which is the rule under current law, but rather within 180 days of receiving any paycheck affected by such a decision, no matter how far in the past the underlying act of discrimination allegedly occurred. As a result, this legislation effectively eliminates any time requirement for filing a claim involving compensation discrimination. Allegations from thirty years ago or more could be resurrected and filed in federal courts.
That is balderdash and President Bush knows it. The act has a 2-year limit that even I can read and understand. The actual text of the law says:
B) Liability may accrue and (in addition to any relief authorized by section 1977A of the Revised Statutes (42 U.S.C. 1981a)), an aggrieved person may obtain relief as provided in subsection (g)(1), including recovery of back pay for up to 2 years preceding the filing of the charge, in an action under this title concerning an unlawful employment practice with regard to discrimination in compensation, where the unlawful employment practice that has occurred during the charge filing period is similar or related to an unlawful employment practice with regard to discrimination in compensation that occurred outside the charge filing period.'.
The Congressional Budget Office, in its analysis of the bill said, “The Fair Pay Restoration Act would not establish a new cause of action for claims of pay discrimination…CBO expects that the bill would not significantly affect the number of filings with the Equal Employment Opportunity Commission.”
Yet, this veto threat on the part of the president is what sunk the Lilly Ledbetter Act, since the Senate was unable to muster enough votes to override a veto. Both Senators Murkowski and Stevens voted against the motion to limit debate.
This is where I became involved with this legislation.
My qualifications for discussing this case are pretty straightforward. I am a voting, taxpaying, and flag-waving citizen of this republic. I work for wages. And four months ago I would have said that I am a concerned parent, but now I’m even more of a heavy hitter because I am a grandparent. This case affects me and my family and the kids next door, and that made it imperative for me to speak my mind. So, couple of months ago I received an email soliciting volunteers to go to Senator Murkowski’s office to speak to her about the importance of SB 1843. I responded to the email because I am appalled that we are even having this conversation, and that is what I told Senator Murkowski. For heaven’s sake, I did this when I was 20, why are we doing it again? What makes it an especially bitter pill for me is that my daughter received the same email and, unbeknownst to me, also accepted the invitation. That’s pitiful. How many times do we have to revisit this?
When we visited with Senator Murkowski, she stated that she was personally in favor of some legislation to strengthen the remedy in cases like this but that the Democratic leadership in the Senate, because of its insistence that the debate be limited and no amendments allowed, made it impossible for other members to have input into the legislation and that it was an undemocratic process and a violation of senate procedure. She indicated that she would consider voting for another bill and she was willing to work across party lines to develop such a bill. She made some mention of bipartisan talks that were under way at that time (last spring). I have seen no reference to any such legislation since that date.
Does anyone else see the irony here? Sen. Murkowski objects on procedural grounds and is willing to let this ruling stand for that reason. The Supreme Court was willing to let stand the demonstrated injustice against this woman based on (erroneously) perceived procedural grounds (time barred). This is a real woman, with a real injury, who is being allowed to suffer real loss based on two bodies that can’t, or won’t, look beyond minutiae to the larger real picture. Something about forests and trees is gnawing at the back of my brain.
I usually only unload on my family, in the privacy of my own home, but this topic has robbed me of my intelligence and sent me straight to blather. I am almost incoherent in my fury over both the Court’s decision and the subsequent defeat of this bill.
First of all, in reference to the court:
The six-month deadline cited by the court is enough to torpedo almost any challenge to pay discrimination under Title VII, and this court totally ignored reality in reinterpreting the law to impose that time limit. First of all, pay discrimination is not a distinct act, like a firing, or a refusal to hire, or a denied promotion, each of which stands alone and tends to be public. Pay, however, is generally confidential, and the damage, like reduced merit increases, can take many years to become apparent. Plus, the effects of payroll discrimination are incremental, increasing as one year’s shortage contributes proportionally to a larger reduction each following year, (retirement accrual, percentage based increases, etc.) so it can be many years before an employee can demonstrate the real effects of such discrimination. An employee who complains too soon may not have enough evidence to successfully sue, but, according to this court, that same employee can’t complain too late, since they only have six months from the initial illegal action on the part of the employer to file a complaint. In effect, this ruling denies recourse of any kind to employees subjected to payroll discrimination, one of the very groups that Title VII was written to protect.
Well, that’s just stupid. We all know that – the majority just chose to ignore the realities. Have these guys NEVER worked in the real world? Part of me wants to be all intellectual and removed, but the real working person in me just flames when I read this decision. In most private companies you can get FIRED for crying out loud, for sharing payroll information with other employees. It’s one tool management has to control the work force. You can convince someone that he or she is at the top of the scale, or you can threaten, or entice, because the employee is never completely certain of where she stands in the payroll hierarchy. And it is very effective.
I found this statement in a thread on salon.com and I thought it made its point well:
Before the Supreme Court ruling, complainants had 180 days to file. They still have 180 days to file. The difference is that now the 180 starts at the first discriminatory paycheck whereas before you could sue from your most recent discriminatory paycheck.
The Fair Pay Restoration Act would have restored the interpretation of the law to what it was before the Supreme Court's new reading of it. Hmm, who are the real activist judges?
This wouldn't have been a campaign issue if Senate Republicans had simply supported the completely reasonable Fair Pay Restoration Act. Senate Republicans made this a campaign issue.
The one-vote majority of this Court chose to cite cases involving distinct acts to support its flawed ruling and overturn its own precedent. In reading the dissenting opinion from Justices Ginsburg, Stevens, Souter, and Breyer, I found the case history that courts have used in past decisions. These cases actually deal with payroll discrimination and are applicable to the Ledbetter case.
And where is the Department of Labor in this conversation? Why was it not participating in this conversation, in defense of labor laws? All you need to do is look at the nameplate on the door of the Secretary of Labor for that answer. Elaine Chao should be named the Secretary of Indentured Servitude. She is one of the reasons that we MUST elect progressives of whatever stripe to Congress. We need a Department of Labor that actually works. Four more years of Elaine Chao will ruin us all. This woman disagreed with the minimum wage increase, for crying out loud. Her department is the one that gets to take credit for threatening jail time for volunteer union officers who fail to report a “conflict of interest” if they don’t know that their employer does business with a bank that holds their mortgage!
Yes, I am grumpy about this. I’m grumpy because we already had this conversation, did this work, resolved this issue. And 35 years later, here we are again, fighting the same battle, doing the same work, facing the same stupid issue. I’m grumpy because my daughter has to have this conversation. This is just plain stupid. This country EXPECTS women to work – almost demands it. Yet, the same double standard still drags women down.
I’m lucky. I belong to a union. I know- I’m a dying breed, but you know what? I KNOW what my coworkers make; all I have to do is open my contract and look at the seniority list to figure it out. And I know, that no matter my race, gender, age, religion, or sexual preference, if I have the same seniority and the same job, I will receive the same pay. Some will try to sidetrack the conversation with claims of employer hamstringing, but you know what, it’s right and it’s fair and it works.
But for those who don’t have the protection of a union contract, or who aren’t professionals, with the ability to negotiate payment on a level playing field, we need this act.
The ADN said it well in an editorial last spring:
The Lilly Ledbetter Fair Pay Act of 2007 would make clear that discrimination can be cumulative; that violations of the law occur every time an employee receives a check that was ever based on gender, race or disability discrimination. No employer could conceal pay discrimination for 180 days and then count on being home free from the law, as well as profiting by keeping the wages it should be paying to an employee…
What's unfair is unfair every time it's inflicted on someone, not just the first time, and not just when it's consciously done. If a paycheck is unfair, that 180-day clock should start anew every payday. That's what the fair pay act would do…
What the bill does is give employees a fair chance of compensation when they discover injustice in pay discrimination -- no matter when the discrimination started. What the bill does is give employers incentive to obey the law of the land, to do what's right. What's right is equal pay for equal work, no matter gender, race, disability or any other measure. That principle should cross political lines with ease. Do the job, draw the pay. End of story.
Senate supporters have promised to bring the bill back. That's a promise they should keep for the sake of fairness and decency. For fairness and decency, Senators Stevens and Murkowski should join them.
From: Alaska senators should back Lilly Ledbetter Fair Pay Act
Published: May 12th, 2008 10:52 PMLast Modified: May 12th, 2008 11:34 PM
The conflict here is much larger than whether or not Lilly Ledbetter should have been able to obtain redress over twenty years. The problem is whether or not we, as a society, are going to continue to allow politics to be about swift-boating, and disco pigs and gay marriage or whether it’s going to be about the Department of Labor and the National Labor Relations Board and the Supreme Court and voter access to the people who work in our nation’s capital. As long as we allow ourselves to be sidetracked by stupid irrelevancies, we will continue to elect officials who are dismantling our real middle class values – what FDR referred to in 1941 as the Four Freedoms – freedom of religion and freedom of speech and freedom from fear and freedom from want – those are what we are really in danger of losing. As progressives, we need to stay on message – when I’m assaulted with comments about abortion and gay marriage and terrorism I need to remember the real values that we need to protect – the ability of working families to make a fair living; the availability of affordable, reliable health care for everyone; access to whatever education you need to achieve your goals, be it college, or technical school, or apprenticeship; the value of blue collar workers, who actually MAKE things and deserve our respect, and decent jobs, and equal pay no matter their color or gender or age. Lilly Ledbetter is simply the poster child for those values, and as long as we allow the conversation to be high jacked or sidetracked we will see the appointment of more judges who will split hairs rather than make decisions based on the larger principles of representative democracy. We will have more Secretaries of Labor who draft regulations with an eye toward protecting corporations rather than workers. We will see more and more pensions abrogated by companies who reward slash and burn management with salaries 364 times higher than the average worker. We will be held hostage more and more by corporations operating largely outside our borders that have all the protections of citizenship and who exploit our infrastructure without paying their fair share for the benefits they receive. We will pay more and more and more for less and less and less health care. And we will continue to hemorrhage dollars and sacrifice our military personnel in ill-planned and illegally declared wars.
So, I say, remember Lilly Ledbetter whenever you discuss politics, because this ruling did not come just from 5 justices on the Supreme Court; it is a product of the politics of fear and division. We need to take back the high road. We need to remind our neighbors and friends that we are a great country not because we all have the right to carry guns and marriage is between one man and one woman but because we have equal opportunity that comes from access to jobs and education and the voting booth.
Senator Edward Kennedy, the chief sponsor of the bill, in his floor address quoted Dr. Martin Luther King, who,
…spoke of the great danger of inaction when he said that we will come to repent, ‘not merely…the hateful words and actions of…bad people but…the appalling silence…of good people’…Now is the time to correct this injustice of the Supreme Court’s decision in the Ledbetter case and restore the vitality of our laws against pay discrimination.
Thank you for allowing me to speak.
There was a question and answer period after the talk and one of my favorite questions was from a woman who asked me if I knew the gender makeup of the Eleventh Circuit bench. I'm going to have to look into that....
I was thrilled when another attendee told me that she heard Lilly Ledbetter speak this summer and she thought that Ms. Ledbetter would agree with everything I said.
I was sort of preaching to the choir with this group, but I was pleased to learn that there were some members present who were not familiar with the bill.
