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Today, Something Even Clinton and Obama Can Agree On
Today is Equal Pay Day. In an unusual show of good timing, this week the Senate takes up the House-passed Lilly Ledbetter Fair Pay Act (H.R. 2831). It's only been sitting at the desk since July 2007, but better late than never. They'll debate the bipartisan bill, and the make-or-break cloture vote is scheduled for Wednesday (4/23) afternoon -- moved to a time when hopefully both Clinton and Obama, both original sponsors of the legislation, can get back to town for the critical vote. This civil rights legislation corrects one of the latest missteps of the Roberts Supreme Court – this one coming last May via their controversial split decision in Ledbetter v. Goodyear Tire & Rubber Company.
Color me surprised – the Court’s new majority got it wrong? You mean, they took the first available opportunity to turn a decades old civil rights law on its head? Gee, whoda thunk? (Sorry, I’m still a bit bitter after fighting so hard against the Bush nominees -- only to see the Senate Dems roll over and play dead.) Now, we all get to reap what President Bush and the Senate Democrats have sown by putting Roberts and Alito on the bench for life -- and we're faced with the cheery prospect of cleaning up the mess, decision by decision.
But I digress. Here’s the gist about the Ledbetter Fair Pay Act. For more than 40 years, the courts and the Equal Employment Opportunity Commission have followed the same precedents and policies when interpreting the statute of limitations under Title VII of the Civil Rights Act of 1964. This practice became known as the paycheck accrual rule, and is the simple principle that each paycheck – itself tainted by a prior discriminatory pay decision – is in and of itself another discriminatory act. Thus, a tainted paycheck can restart Title VII’s 180 day clock.
But last spring, the Supreme Court’s Ledbetter decision turned decades of legal precedent on its head and created a new standard: if an employee doesn’t know they’re being discriminated against in the first 180 days, and doesn’t file a pay discrimination claim in that period, then they’re shit outta luck – and the employer is forever immunized from any responsibility for that discriminatory pay decision. Yes, you read that right. The employer can then knowingly continue to pay the employer a less than fair wage, because the 180-day charge period has passed without the employee finding out and filing a charge about the inequitable pay decision. Welcome to civil rights on the Roberts Court.
This new, impractical standard makes it almost impossible for workers to seek justice for pay discrimination. Why? Think about it. The first six months on the job, most folks don’t exactly hang around the water cooler asking their co-workers the intimate details of their pay stubs. It often takes time for this kind of insidious discrimination to make itself known – particularly since so many employers still tell employees they're not allowed to discuss wage issues at work.
That’s exactly what happened to Lilly Ledbetter. She worked for Goodyear in Gadsden, Alabama, as a shift supervisor. Not long before she retired, Lilly discovered that all the other shift supervisors – all male, most of whom hadn’t worked there nearly as long as she had – were making a lot more money than she was. Her bosses wouldn’t talk to her about it, so on her first day off she went to the nearest EEOC office in Montgomery, and filed a claim. It progressed painfully from there – such lawsuits are never a cakewalk – but the system as it was then worked for Lilly. A jury of her peers in that company town decided Lilly had been discriminated against, and awarded her two years back pay (the limit under the statute) and a large punitive award, which was immediately reduced to $300,000 – the statutory cap for sex-based discrimination under Title VII. Lilly was vindicated.
But wait. Goodyear decided to appeal – oh, not based on the facts of the case. They admitted the discrimination – 20 years worth. Goodyear simply said Lilly Ledbetter had filed her claim too late, and thus had no recourse whatsoever -- tough luck. No matter that Goodyear forbade Lilly and the rest of its employees to talk about their salaries. No matter that Lilly worked for over 20 years before she first discovered the inequities that had begun decades before -- via an anonymous note in her mailbox, of all things.
The purpose of the Ledbetter Fair Pay Act is to correct the Supreme Court’s blunder in Ledbetter, and return to the earlier, long established practices in employment law. This is, in fact, what Justice Ruth Bader Ginsberg asked Congress to do in her stinging dissent in Ledbetter -- a dissent she felt compelled to read from the bench to the Court, an unusual action that is a telling barometer of her ire.
Critics such as the U.S. Chamber of Commerce and National Federation of Independent Business are throwing around all kinds of distortions, and lobbying hard to block the bill. This despite the fact that the paycheck accrual rule wasn't something business groups were clamoring to change prior to Ledbetter. In fact, the issue wasn't even on their radar screen -- the precedent was that established -- but now they don't want to let this unexpectedly juicy plum go.
But don’t let anyone fool you. This bill is a reasonable, narrow fix. Truthfully, advocates could have gone after a bigger bite of the apple – we could have asked for language to increase the 2-year limit on back pay, for example, or to lift the caps on punitive damages. But when you're working in an environment where the Senate has become the place where all good bills go to die -- where it's 60 or bust -- advocates chose to literally go after a bill that simply turns back the clock. The Ledbetter Fair Pay Act is a time warp of sorts, taking us back to the practices and precedents as they were the day before the Ledbetter decision – no more, no less.
The vote also provides a good gauge of a legislator's position on pay equity issues this election year -- a year when several moderates are running scared of being scored on such votes. A year when pay equity is a top priority for women voters. This issue also is yet another illustration of the importance of judicial nominations and getting a Democrat into the White House. Advocates and Democrats are pretty close to getting the 60 votes we need to move to a final vote on the bill -- close enough to make the Republicans sweat. But it's touch and go, and several moderate and independent-minded Republicans are up for grabs. Also, more conservative Democrats always need shoring up.
What can you do? Take a moment and call your senators. Urge them to vote yes on the Ledbetter cloture vote, and yes on the Ledbetter Fair Pay Act (H.R. 2831). Call this toll-free number (866-338-1015) to get the Capitol Hill operator, and you can ask for a senator's office. And then, speak your mind for pay equity – it’s Equal Pay Day (4/22), and there's no better day to do it.
http://thezaftigredhead.blogspot.com
Comments (17)
Call made. Thanks Redhead!
April 22, 2008 10:12 AM | Reply | Permalink
Actually, I am surprised, because it's so wrong as to almost be satirical. I'm also disappointed. I didn't think I could be any more disappointed in the current administration. I was wrong. They keep doing that to me. I mean, there has to be a depth to which they won't sink, right? We won't see a return to slavery and child labor by the end of the year, will we?
April 22, 2008 11:41 AM | Reply | Permalink
The premise of equal pay day (salary inequality is based on gender) is a myth. Numbers add up into interesting ways to find interesting "conclusions".
See, for example,
http://www.amazon.com/Why-Men-Earn-More-Startling/dp/0814472109
It's also important to note that gender arguments about college admissions are getting dicey -- as more women are in college then men.
April 22, 2008 9:13 PM | Reply | Permalink
Women have made great strides in education, it's true, and it's a good thing. But it's funny how the media reports on the numbers of men and women on college campuses. The reality is, there are more women AND men going to college today than ever before. It's not like women's success has come at the expense of men. And when you talk about the folks going to college right out of high school, the numbers are pretty even between men and women. Where the female/male numbers get interesting is that a lot more women go to college later in life. I'd surmise a lot of them do it because they've been in the workplace and seen that the only way to improve their lot is an education -- even though that doesn't close the wage gap completely.
As for the wage gap, that is alive and well. It is clear that some of the gap can be explained by legitimate reasons such as education or training, or job responsiblity. And its true that some women could negotiate better -- although that can be a damned it you do, damned if you don't situation too. But even government economists admit that a portion of the gap, even after regression analysis for these issues, remains unexplained. That's the discrimination. AAUW did an interesting study where they did regression analysis for such reasons, and compared women and men one year and ten years out of college -- and there was still a gap, even for folks in the same major and occupation. (www.aauw.org)
It's there, it's real. That's why we need to make sure Title VII of the Civil Rights Act remains strong.
April 22, 2008 9:29 PM | Reply | Permalink
Zaftig,
I'd be interested in some links to these studies that purport to demonstrate a wage gap based on discrimination. Also, why do you automatically assume that an unexplained wage gap is due to sex discrimination? The fact that it is unexplained suggests to me that we don't actually know why it exists.
April 22, 2008 10:00 PM | Reply | Permalink
Warren Farrell discusses these issues:
http://en.wikipedia.org/wiki/Warren_Farrell
Interestingly, in this article, you will find:
April 22, 2008 11:24 PM | Reply | Permalink
You want it, you got it. :)
Here's the AAUW study I mentioned: www.aauw.org/research/behindPayGap.cfm
Also: Wage discrimination persists despite women’s increased educational attainment, greater level of experience in workforce, and decreased amount of time spent out of the workforce raising children, according to a study by the Government Accountability Office. www.gao.gov/new.items/d0435.pdf
Also: press release about the GAO report, above.
www.iwpr.org/pdf/WageGap20nov03.pdf
Also: Many economists believe the ‘remaining unexplained gap’ can includes the effects of discrimination.
www.iwpr.org/pdf/C366_RIB.pdf
As to why the unexplained portion would be attributed to discrimination, well -- mostly because these studies have controlled for all the stuff that reasonable people would assume would and should lower wages. That does indeed account for part of the gap and there's no sense in being disingenous about it. However, once you screen that stuff out, all the reasonable and typical economic and workforce explanations are gone -- so what is left? That's the question. I feel comfortable that it's got something to do with discrimination. Folks, though, as always, can make up their own minds.
April 23, 2008 9:34 PM | Reply | Permalink
On a percentage basis more women are in college then men.
Quotas cut both ways, you know. Careful what you wish for.
I can also tell you (with several anecdotal facts) that women faculty members are often the biggest enemy of up-and-coming women. It's nice to close the hatch behind you, I guess.
Your gender-based pay-gap is a myth. It's apparent you have never run a business. This is one of the most highly scrutinized areas today.
The gap comes from many women *choosing* to have lower paying jobs which are more flexible on hours, or *choosing* to take time off to have a family.
You will find that women who chain themselves to their desks and their careers and sacrifice lifestyle choices, earn salaries just as healthy as their male counterparts. This includes not having children.
You can't have it all, life is about choices and being happy with the ones that you make.
April 22, 2008 11:20 PM | Reply | Permalink
Come on, clearthinker. You're using a self-help book as evidence to explain the income gap? You've also cited anecdotes to defend the weird and largely irrelevant generalization that female professors are the "enemy of up-and-coming women". Then you make bald assertions about the real reason that men have higher salaries, as if your experience as business man absolves you of the need to present evidence.
If you're going to make the rather strong argument that sex discrimination is a "myth" as opposed to simply "unproven", show off some clear thinking and present a coherent, well-defended argument.
April 23, 2008 1:54 PM | Reply | Permalink
Amen.
April 23, 2008 11:14 PM | Reply | Permalink
I would add that even if there isn't widespread discrimination, it's absurd to suggest that there is no discrimination. The Ledbetter case is but one example. So the Ledbetter Act should be passed to address those cases.
April 23, 2008 2:00 PM | Reply | Permalink
Genghis,
I can't prove a negative -- and you should know that.
I'm a little disappointed that you referred to a layman book as a "self-help" book. Are you judging a book by it's cover? Isn't that discriminatory (in the real sense)?
I don't know if you've run a business or not, but it's nearly impossible to make a policy of paying genders different rates for the same job.
I'll say it again: the "pay-gap" assertion is not what you think it is. It's not about a woman in the *same* job gets paid less than a man. It's the assertion that "equal tiered" jobs have a gender pay-gap.
And it's the "equal tiered" jobs that is a problem.
Look at the reference that Zaftig cites:
http://www.iwpr.org/pdf/C366_RIB.pdf
and look at page 3.
They compare the following two classes of jobs as equivalent:
Nurses/Teachers to Business Exec/Doctors/Lawyers/Scientists
and they also compare
Secretaries to Police/Firefighter
They say that these jobs are "equivalent" since each requires an equal level of training and skill".
Read that again. "Equal level of training and skill."
This is absurd. Do you think a secretary has an equal level of training and skill as a firefighter? If you answered "yes", you don't know any firefighters.
Do you think a nurse has equal training and skill as a doctor? Nurse encompasses a whole wide range of jobs... doctor is pretty specific. Do you think that they are both top tier equivalents?
It's pretty obvious they aren't.
There is a bait and switch here:
To prove a Pay-gap, you have to show that a female doctor earns less than a male doctor, or a female nurse earns less than a male nurse.
What instead, you see that jobs are equivalent -- sort of like saying "teachers should be paid more", which you may or may not agree with, but certainly has *nothing* to do with gender, right?
Want to see another bait and switch? I point out that percentage-wise more women are in college these days then men. (Factual and true.) Zaftig counters that there are more women *and* men in college these days. Okay. What does that have to do with the first statement?
My statement about academic professors is necessarily cryptic and I can understand why you didn't understand it. Suffice it to say that quite often women faculty members are *harder* on tenure decisions involving new women faculty then men. Admittedly this is anecdotal, but I have also seen how women managers are harder on women employees than men. Occasionally you do hear of sociological studies that tend to bear this out. However, I certainly wouldn't found on a movement on it, because, the evidence it not strong enough. Still, it tips in one direction rather than another.
As far as the pay-gap myth, in 2008, this issue has, by in large, been dealt with. Start reading the studies with an open mind -- it may surprise you. Please don't assume the "given knowledge". I think you will agree, that all it takes is clear thinking.
And if something is "unproven", then to assume that it must be, is certainly not clear thinking. The burden is on those who claim that females earn less pay for the *same job* must prove that claim. I have yet to see studies from 2008 that show it.
April 24, 2008 1:37 AM | Reply | Permalink
Exactly. So don't pronounce confidently what you can't prove. It would be sufficient to say that the evidence for widespread pay discrimination is poor. You are on firmer ground when you criticize the methodology of the study Zaftig cites than when you project from your personal experience to make sweeping claims.
"Self-help" was overly dismissive. But yes, I don't give layman books the same credibility as academic ones for the simple reason that laypeople tend to have lower standards of accountability. Layman books also tend to be more polemical, and this one does not appear to be an exception. If it makes you feel any better, I'm skeptical of studies put out by AAUW as well. As for discrimination, layman books achieved parity with academic books during the civil rights movements in the 60's, and discrimination towards layman books has all but disappeared in this country.
1) It's anecdotal. 2) It's irrelevant: women can discriminate against other woman. So why even mention it at all?
No one doubts that there is a wage gap. The question is what causes it. Zaftig has presented one explanation. You have presented another. You each have a burden of proof. On it's face, both discrimination and gender-driven job preferences seem plausible to me, and I'm guessing that both play a role. But I don't know enough about the matter to make a confident judgment about that, and yes, I should learn more and remain skeptical of both sides.
What I am confident of is that there is some gender discrimination in the workplace. Anecdotal evidence is sufficient to prove that, and anecdotal evidence abounds. And any amount discrimination justifies passing Ledbetter. There is no good reason for a 180 day limit on discrimination claims.
April 24, 2008 9:18 AM | Reply | Permalink
Twisting my words is poor form and not your typical rational self, Genghis. My comment about proving a negative wasn't about the pay-gap myth, but about *your* comment to me.
You can show something doesn't exist. You can't *prove* something doesn't exist.
I have shown the pay-gap, as presented, doesn't exist as a job-for-job comparison. QED.
You are 1/2-correct. It wasn't irrelevant, but it was slightly off-topic. Perhaps I shouldn't have included it, but I was making the point that
a) Academia women (where many studies come from) also have issues
b) To refute the implied charge on pay-gap that men are keeping women back.
Of course, you seemed to dismiss the author of the book I posted, despite my also posting his Wiki Entry. Stephen Hawkings writes laymen books. Does this invalidate his authority as a physicist?
And you have also said (correctly) that the AAUW has a point of view as well.
So, now I ask you: where are the academic studies that make you feel there is a gender pay-gap? Not from the 70's, but from today?
You discount my knowledge of business, though there are all kinds of regulation there, but you go with your own "gut" feelings.
What you have is a working hypothesis with no backing data and nothing more.
That would tip the argument to my favor: the gender pay-gap is a myth.
Not true. Lots of people do.
I am sure YOU are. It doesn't make it a reality.
You are working on faith -- much like those GOPers who believe all sorts of things that you know isn't the case, but try to convince them of that. As proof, I offer your post here which is more highly emotional than I've seen from you elsewhere, where you have been just as passionate. You were more than your usual calm reasoned self when you replied to me both times. And I deliberately didn't go out of my way to provoke you on my reply because I respect you for that usual calm self.
Issues like this are hot-button, and I find that people tend to go with their own "received wisdom" rather than look at the facts and challenge themselves.
That you simply *assert* your idea of a global, gender pay-gap is emotional, and not rational. That I showed where Zaftig's study does a bait-and-switch, and yet you didn't reply to my specific comments, indicates you don't want to step back.
You claim both Zaftig and I have a "burden of proof". That is patently wrong. If you are going to make policy, you better have damned good evidence that you are, in fact, fixing something that is real. The burden is on the people that want to make a policy. Second, if we both have "burden of proof", why did you heartily recommend Zaftig's original post and promote it on a cross thread? You aren't treating both sets of arguments equally.
Answer: Zaftig's post fit in your preconceived world view. That is why you have difficulty with my response.
Does some discrimination occur on the basis of (fill in the blank: gender, religion, skin color)? Sure. But is there an institutionalized, across the board, gender pay-gap? There is no evidence of that.
You know what *has* been shown? People (both men and women) who are more attractive tend to earn more money -- in the same position -- than less attractive people.
But I've yet to see the beauty pay-gap issue on the table. That may be where you want to start your campaign.
April 24, 2008 11:28 AM | Reply | Permalink
clearthinker, you missed my point. I know that gender discrimination exists because I've known people who have been discriminated against. And even in the Ledbetter case, the company did not deny discrimination. They just defended themselves on the grounds that she missed the deadline.
So it's not a gut feeling. What I don't know is how widespread it is because anecdotal evidence cannot demonstrate that. But the Ledbetter Act isn't about how widespread it is. The Ledbetter Act is about whether a person can only file a discrimination charge in the first 180 days of employment. If there really is zero discrimination (and I'm not sure if you actually believe that), then it shouldn't even matter because no one will ever win such a case again. But if there is discrimination, then it's surely reasonable to allow the victim to file more than 180 days after they've been hired.
Regarding the existence of a pay gap, I think that we're using the term differently. By pay gap, I mean simply that the men make more than women on average. 33% more. That's government census data. Not, as far as I know, open to question.
Then I misunderstood you. There was no deliberate twisting. But my point is that you seem very confident that discrimination is not a factor in the pay gap, but you haven't demonstrated that. I don't know whether it is or not and I have not pretended to. I think that your criticisms of AAUW stury were fair. But that should only make you skeptical that discrimination is a factor, not confident that it can be ruled out.
I'm only still writing to this thread out of respect for you. This is the second time that we've gone head-to-head on the question of feminism. Honestly, and I'm sorry for the personal criticism, but you don't seem yourself on this issue. I would never consider myself a feminist. I'm a skeptic on feminism as I am on everything else. I'm not convinced that gender discrimination is still widespread and institutional. I recommended Zaftig's post because I like her writing and because her post was actually about an issue of some significance, as opposed to the constant election sniping that dominates the recommended list. But in both cases in which you and I have debated feminist issues, you have been very opinionated and, in my view, unusually overconfident and careless in your argument. I'm just calling it how I see it. I really don't have a dog in this fight.
April 25, 2008 7:25 PM | Reply | Permalink
Numbers are numbers (though I haven't gone through them myself). My contention is that it is the interpretation of those numbers that's the issue. And it's dangerous to use the words "pay-gap" to imply society-wide institutionalized (note word) discrimination of women and plays into a huge misnomer which will beget poor policy planning.
There is a "pay-gap" between men who are teachers and men who are lawyers. Now if more women are teachers than men, we will "see" that there is a pay-gap "based" on gender, but the correlation is meaningless. It's the type of jobs that women choose to do.
Therefore you can use the word "pay-gap", but what you are really talking about is "value-gap": People with certain jobs get paid more because these jobs are more valued. We can debate this, of course, but the real issue is that the "pay-gap" study as proof of institutionalize (note word) discrimination is wrong.
As a business owner, who would you pay more for a programmer: someone who has 25 years of experience straight out of school? Or someone who is old, has 25 years of experience, but took 10 years off to raise a family, and is now re-entering the job market?
Obviously the first candidate is more valuable. The second is less (skills aren't up to speed compared to the first).
Now which gender would take 10 years off to raise a family? Probably a woman. Which is her choice (and a good one for her children). But to then claim she is owed the same salary as someone who has 25 years of *current* experience is actually not fair or right.
Again, could a company discriminate on the basis of gender? Of course. But the pay-gap data you refer to doesn't sort out the real discrimination from simply bad (or deliberately swindling) number crunching by binning the unlike jobs as all deserving "equal pay" to push a political agenda. And it is *that* that I object to.
30 years ago you would have had a solid point. There *was* institutionalized discrimination. In fact, it went much more than just gender: people with families would get money than single people because "they needed it more". Fortunately, all of these practices were quashed at the institutional level about 30 years ago.
I am no more or less opinionated on this issue as, say, energy. You probably feel differently as you more likely agree with me on the energy issues.
As you, I continue to write to this thread as we are sort of now officially off-line, and we have a dark quiet little corner to discuss stuff. This would obviously indicate a mutual respect -- or at least a knowledge that both of us know how to push the other's buttons. ;-)
Now let's go have a beer -- or a decent bottle of wine.
April 25, 2008 9:01 PM | Reply | Permalink
cheers
April 26, 2008 4:03 PM | Reply | Permalink
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