The Lilly Ledbetter Fair Pay Act will be my generations ERA.  

Thursday, October 16, 2008

It has been stated that one does not fully understand an issue unless a person has gone through it. The ERA is one of those issues for me. The ERA (Equal Rights Amendment) was initially proposed to Congress in 1920s. For over fifty years, feminist groups have lobbied for the amendment, not truly gaining traction until the 70s. Anti-Feminists movements, mostly led by Phyllis Schlafly, rallied against the ERA, claiming that it would harm women more than help them. In fact, that has been the reasoning for most legislation that was designed for women’s equality: by making women equal, they will in fact be harmed. How sweet. How thoughtful. How patriarchal.

To give a perspective of the anti-feminists flawed logic in what they viewed would be harming women, let me draw an example. Phyllis Schlafly and others like her stated that the ERA would allow women to have equal access to employment (oh no!) and therefore would be able to work “manly” jobs without being discriminated against. Women would be able to work in places like mines, which would require them to lift heavy objects, which the anti-feminists would claim harmed women because we just might hurt ourselves (we are very clumsy gender, are we not?). Granted these groups never took into account that heavy lifting is required in jobs that are more socially acceptable for women such as childcare, secretarial work, nursing, and so forth. Apparently, women are too stupid to take care of ourselves in inherently dangerous (or not) workplaces without hurting ourselves. On the other hand, maybe it is because women working a variety of employment that might pay more would allow women to escape being solely dependant on her husband, and we just cannot have that. What is next-women thinking for themselves? By the way, may I bring to attention how I find it somewhat hypocritical that some women like Ms.Schlafly are able to climb the ladder to success yet work tirelessly to make sure women have a difficult time gaining the same authority and notoriety? Just a thought to hang your hat on.

Nevertheless, before you get outraged, just remember, that those anti-ERA groups were only trying to protect our mothers. Obviously, as I stated at the beginning, I was not around during the precipice of the ERA. Reading my history books and talking to feminists who fought the fight over 30 years ago, I wondered what is so controversial about equal rights especially in today’s climate where we as a society believe, falsely, that we live in a post-feminist nation. I wonder what could possible be the reason today for not enforcing equal pay and punishing discrimination. Why is it so hard to pass such legislation? How dumb were those legislators and states who opposed the ERA? What were they thinking?

This brings me to the Lilly Ledbetter Fair Pay Act. The Act was brought before Congress this past spring and failed. First, I will give you the background. The Lilly Ledbetter Fair Pay Act started out as a critical Supreme Court case: Ledbetter v. Goodyear, 127 S.Ct. 2162. First the facts. Lilly Ledbetter worked for Goodyear for 19 years before accepting an early retirement offer. Shortly before she left Goodyear, Ledbetter received an anonymous memo revealing that the other shift supervisors with the same title and job responsibilities she had, were paid between 14-30% more than what she was earning. The decision to pay Ledbetter less than her male co-workers was made years earlier by a supervisor who did not believe women belonged at Goodyear, and certainly not working as supervisors. Until Ledbetter got this memo, she had no knowledge that she made less than her co-workers did all those years. Ledbetter sued, and during the discovery of the lawsuit, Goodyear’s records confirmed the anonymous tip: the sole woman supervisor was paid far less than the men in the same positions were paid.

A jury found that Goodyear had unlawfully discriminated against Ledbetter and awarded her $224,000 in back pay, $4,600 in mental anguish and $3.2 million dollars in punitive damages. Goodyear appealed, and the appellate court sided with Goodyear finding that Ledbetter was barred from bringing a lawsuit because she did not file a complaint within six months of when her supervisor made the discriminatory decision to pay her less than the men. Finally, the case went to the Supreme Court, which decided in a 5-4 conservative majority opinion that shielded employers from liability unless an employee discovers the pay discrimination and acts on that information within 180 days. The dissenting opinion written by the sole woman justice, Ruth Bader Ginsberg, and joined by three male justices (Stevens, Souter, and Breyer) raised an issue that the Court’s majority decision blatantly ignored: the reality of the workplace and common characteristics of pay discrimination. As most who have ever worked a job realize, workers rarely, if ever, have knowledge of how much they are making compared to the co-workers doing the same or similar jobs or the factors employers take into account in making pay decisions- not to mention that many employers specifically bar its employees from discussing their pay. Let it be said that the majority’s opinion goes against most appellate courts (granted, not the appellate court in Ledbetter’s case) and the Equal Employment Opportunity Commission’s (EEOC) longstanding position that every unequal paycheck, based upon discrimination, is a new violation, therefore starting the statute of limitations clock again. At the end of Ginsberg’s dissenting opinion, she noted that it is now Congress’ duty and invited the legislature to correct the Court’s “parsimonious reading of Title VII.”

The House of Representatives, with the help of many Civil Rights groups, passed the Lilly Ledbetter Fair Pay Act, which would have reinstated the law that the EEOC and most appellate courts interpreted Title VII. However, once the bill went to the Senate for approval, forty-two members of the Senate voted to block cloture. The unabashed action of the US Senate has and does astonish me. Many of the Republicans who blocked the vote to reinstate the original reading of Title VII claimed they were doing so to protect women (read “stupid women”)from the greedy clutches of unprincipled plaintiffs’ attorneys and from women’s own stupid inclination to sit around for years, decades even, while being screwed over financially before they bring suit. That means they were, of course, just protecting us from the dangerous laws that protect us. THANK GOD! Women in the United States are paid only 77 cents for every dollar earned by men; African-American women earn only 63 cents, and Latinas earn only 52 cents for every dollar paid to white men. Yet the Ledbetter decision tells employers that as long as they can hide their discriminatory behavior for six months, they have the green light to treat female employees badly forever. Why is this problem not sufficiently real to be addressed by Congress?

It seems that several people in government have attempted to answer that question. Can guess what their concerned about? Of course, the answer is protecting women, or in their view- stupid women, who just cannot seem to think for themselves. Ladies, when will our brains evolve to be on par with men? Let us look at the reasons they proffered:

The White House threatened to veto the legislation if it ever passed Congress because the act would “impede justice and undermine the important goal of having allegations of discrimination expeditiously resolved.” Of course, there is a place for finality in the law, and it is not reasonable to bring allegations against businesses for actions that were committed twenty years back. Nevertheless, unless an employee is psychic, one hundred and eighty days is simply not long enough to decipher a pattern of pay discrimination, which is normally subtle not obvious. The notion that expeditiousness in resolving legal disputes should altogether trump one’s ability to prove those disputes is cynical beyond imagining. Moreover, the very notion that extending the statute of limitations somehow encourages scads of stupid women to loll around accepting unfair wages for decades in the hopes of hitting the litigation jackpot in their mid 70s is just insulting.

Next on the list is a statement by Senator Orrin Hatch of Utah. The Senator did one better in insulting women when he said, “The only ones who will see an increase in pay are some of the trial lawyers who bring the cases.” See, now this is the argument that holds that the same women who are too stupid to bring timely discrimination claims are also too stupid to avoid manipulation by those scheming plaintiffs’ attorneys. First off, some of us still believe that those damn civil rights attorneys do some good in the world. But what really infuriates me here is the endless, snobbish recitation that it is only the really dumb people—you know, the injured, the sick, and the women—who are not smart enough to avoid being conned by lawyers into filing frivolous lawsuits.

All of which brings me to Senator John McCain, a Republican from Arizona(who, by the time you read this, may or may not have won the presidential election) skipped the vote on equal pay vote altogether because he was out campaigning. (Hillary Clinton and Barack Obama both showed up to support it.) McCain’s opposition to the bill was expressed thusly: He is familiar with the pay disparity but believes there are better ways to help women find better-paying jobs. “They need the education and training, particularly since more and more women are heads of their households, as much or more than anybody else.” All of that is code for the imperceptive claim that the fact that women earn 77 cents on the dollar for the same work as men will somehow be fixed by more training for women as opposed to less discrimination by men. Now, this makes me wonder. McCain has at least one daughter. If she ever came home to tell him the same situation of Ledbetter happened to her, would he really stay to her face that she needs more training, rather than telling her that she was discriminated against. I think not.

So, forty two members of the U.S. Senate blocked a bill that would allow victims of gender discrimination to learn of and prove discrimination in those rare cases in which their employers do not cheerfully discuss it with them at the office Christmas party. And the reasons for blocking it include the fact that women are not smart enough to file timely lawsuits, not smart enough to avoid being manipulated by vile plaintiffs’ lawyers, not smart enough to know when they are being stiffed, and (per John McCain) not well-trained enough in the first place to merit equal pay. So how dumb are we as a nation? Unfortunately, the next generation, thirty plus years down the road, will have to tell me.

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