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Commentary: Lilly Ledbetter Fair Pay Act of 2007

By Beth Wellington, Published on May 28, 2008

George Miller's (D-CA) H.R. 2831, the Lilly Ledbetter Fair Pay Act of 2007, stalled in the Senate April 23, when a vote failed to stop a threatened filibuster.

As economists and pollsters talked about a recession and consumers facing increased gas and food prices worried about the security of their jobs, April was also the month to remember the wage gap: Women average 77 cents for every dollar men earn for comparable work. April 22, in addition to being Earth Day, was Equal Pay Day, calling attention to when women's wages catch up to men's wages from the previous year.

If you doubt the pay gap still exists, just ask Lilly Ledbetter. The namesake of Miller's bill worked as a supervisor at Goodyear Tire & Rubber Co.'s plant in Gadsden, AL. After a 19-year career, she discovered she was making $6,500 less than her lowest-paid male counterpart. She sued and won under Title VII of the Civil Rights Act of 1964, but lost on an appeal to the Supreme court, which ruled in a 5-4 decision on May 29, 2007 (Duke Law School backgrounder) that workers have only 180 days to file a discrimination suit from the time that the discrimination first takes place. Not only did Ledbetter lose the 2003 federal jury award of $3.8 million in damages, later reduced to $300,000 by a judge, but Goodyear billed her $3,165 for court costs.

Miller's bill would have reinstated the law as interpreted by most appellate courts and the Justice Ruth Bader Ginsberg pointed out,

The Court's insistence on immediate contest overlooks common characteristics of pay discrimination. Pay disparities often occur, as they did in Ledbetter's case, in small increments; cause to suspect that discrimination is at work develops only over time. Comparative pay information, moreover, is often hidden from the employee's view. Employers may keep under wraps the pay differentials maintained among supervisors, no less the reasons for those differentials. Small initial discrepancies may not be seen as meet for a federal case, particularly when the employee, trying to succeed in a nontraditional environment, is averse to making waves.

Ledbetter in her House testimony at a June 12, 2007 hearing before Miller's Committee on Education and Labor explained,

according to the Court, if you don't figure things out right away, the company can treat you like a second-class citizen for the rest of your career. That isn't right. The truth is, Goodyear continues to treat me like a second-class worker to this day because my pension and social security is based on the amount I earned while working there. Goodyear gets to keep my extra pension as a reward for breaking the law.

When Ledbetter sued she maintained that earlier decisions by supervisors kept her from making more. She told the House,

The plant manager flat out said that women shouldn't be working in a tire factory because women just made trouble. One of my supervisors asked me to go down to a local hotel with him and promised if I did, I would get good evaluations. He said if I didn't, I would get put at the bottom of the list. I didn't say anything at first because I wanted to try to work it out and fit in without making waves. But it got so bad that I finally complained to the company. The manager I complained to refused to do anything to protect me and instead told me I was just being a troublemaker. So I complained to the EEOC. The company worked out a deal with the EEOC so that supervisor would no longer manage me. But after that, the company treated me badly. They tried to isolate me. People refused to talk to me. They left me out of important management meetings so I sometimes didn't know what was going on, which made it harder to do my job. So I got a taste of what happens when you try to complain about discrimination.

On behalf of the Chamber of Commerce, Neal D. Mollen argued against Ledbetter to the House, saying that Miller's bill, in restoring the paycheck provision would have

frustrated Congress' design for attempting to resolve such matters, at least in the first instance, without litigation.

Prior to the Supreme Court ruling, Robert Barnes covered Ledbetter's case in his Washington Post story, A Hearing Without Being Heard: As Justices Take Case, Plaintiff Finds It Has Little to Do With Her Anymore.

Ledbetter and the bill named in her honor gained prominence again April 23 when the press covered Senator John McCain's stop in Inez, KY on his It's Time for Action tour, as he sought to emphasize his attention to the powerless in our country.

In this rural eastern Kentucky town, where poverty is worse among women than men, McCain suggested what women need is not more legal redress for discrimination, that education and training will suffice.

I know about Inez, KY from covering the largest environmental disaster in the southeast - Martin County Coal Sludge Spill - and from covering the work of federal mine inspector, Jack Spadaro who refused to support the dministration policy and was locked out of his own office on the orders of Secretary of Labor Elaine Cho.

What I had not remembered about Inez was Lyndon Johnson's visit to launch the War on Poverty of which McCain reminded us on his stop there. McCain had launched the tour April 21 in Selma, Alabama at the Edmund Pettus Bridge site of Bloody Sunday, March 6, 1965. That 1965 assault on marchers contributed to the federal Voting Rights Act's passage, following upon the 1964 Civil Rights Act. Bill Moyers, who was President Johnson's press secretary reports that on the evening of signing the 1964 measure, Johnson said, "I think we just delivered the South to the Republican Party for a long time to come."

Steve Holland of Reuters UK reported,

McCain was driven through the mountains to that wood frame house Johnson visited but now it was padlocked with the front porch fenced off, a "No Trespassing" sign posted and car parked in a driveway with a blanket covering a broken window.

John McCain had come to Inez not to praise Johnson, but to (re)bury him in this the centennial year of his birth. At a news conference at the old Martin County Court House, McCain told reporters, according to AP writer Libby Quaid,

I wouldn't be back here today if government had fulfilled the promise that Lyndon Johnson made 44 years ago.

On July 31, 2007 Miller's bill had passed the House by a vote of 225-199, along almost entirely partisan lines. After a threatened presidential veto, on the evening of Wednesday, April 23, 56 Senators voted to move the measure forward, 4 votes short of the 60 needed to stop a filibuster. (Actually Majority Leader Harry Reid (D-NV) spoke in favor but voted against it for procedural reasons, allow him to bring the matter up again.)

Republicans voting to stop a possible filibuster were Coleman (MN), Collins (ME), Smith (OR), Snowe (ME), Specter (R), Sununu (NH). Coleman had been targeted by People for the American Way in web and radio ads.

For years, Lilly Ledbetter was paid far less than the men in her factory for doing the same work - and she proved it in court. But when the company appealed to the U.S. Supreme Court, a new justice nominated by George W. Bush and supported by Minnesota Senator Norm Coleman wrote the opinion that denied her equal pay. Tell Norm Coleman we need judges who will protect workers - not take our rights away.

Reid had delayed the vote to give McCain's Democratic rivals, Hillary Rodham Clinton and Barack Obama time to return to Washington to support the measure. As a result, Minority Leader Mitch McConnell (R-KY) argued,

A vote to proceed to the Ledbetter bill is a vote to proceed away from the veterans bill. This is really highly ironic because my side was taking a pounding Monday and Tuesday for allegedly holding up, if you will, the veterans bill. Of course, that was not the case. We have ended up, in order to accommodate the schedules of those who are frequently not here--and understandably not here because they are running for President--we had the Senate, in effect, not in session until 5 o'clock this afternoon. While Americans are waiting for Congress to do something about the economy, jobs, and gas prices, our friends on the other side decided to close shop in order to accommodate the uncertainties of the campaign trail. Finding solutions for the concerns of all our constituents should be our top priority, not just accommodating the travel schedules of two of our Members.

Reid responded,

Their schedules were very difficult recently. They could be here at 6 o'clock. So I made the suggestion, which I thought was reasonable--we haven't been able to legislate on the veterans bill since last Thursday; how about doing it on Wednesday, until 5 o'clock. That would be 6 hours more than we have done since last Thursday. There was a refusal to allow us to do that. To have my friend, the Republican leader, come here and say we haven't done anything today because we had a vote scheduled at their convenience--he didn't use the names, but Senators Clinton and Obama- that is absolutely without any foundation. I have trouble understanding how my friend would have the gall to stand on the floor and make the comment he did, but he did.

McCain did not return from his tour to vote, missing in action along with Chuck Hagel, but Senate Republicans did not need them to stall the bill. Although McCain left no legislative footprints, AP writer Libby Quaid quotes him:

I am all in favor of pay equity for women, but this kind of legislation, as is typical of what's being proposed by my friends on the other side of the aisle, opens us up to lawsuits for all kinds of problems.....This is government playing a much, much greater role in the business of a private enterprise system.

So what's a woman to do? McCain told folks in Inez, women

need the education and training, particularly since more and more women are heads of their households, as much or more than anybody else...And it's hard for them to leave their families when they don't have somebody to take care of them....It's a vicious cycle that's affecting women, particularly in a part of the country like this, where mining is the mainstay; traditionally, women have not gone into that line of work, to say the least.

Actually, women do mine coal.

Between 1974 and 1980, almost 2,400 women were hired as underground coal workers in the East...In the mid 1980's when the underground coal mining industry started to decline, many women lost their mining jobs because of the rule, "last hired, first fired."

Mining employment continues to decline, as mountaintop removal uses far fewer miners as conventional methods. Jack Spadaro, the mining inspector whom I mentioned earlier in this article, has told me that the ratio is one MTR job for 200 conventional jobs and that the coal companies would still make tremendous profits hiring the 200.

The higher education rate for women already exceeds that for men. Jonathan Rauch wrote in the January 15, 2008 issue of the libertarian Reason magazine,

According to projections by the National Center for Education Statistics, in 2017 half again as many women as men will earn bachelor's degrees. In the early 1990s, six women graduated from college for every five men who did so; today, the ratio is about 4-to-3. A decade from now, it will be 3-to-2-and rising, on current trends.

But those are as they say, "inconvenient truths."

Or, as Gail Collins pointed out in the April 26, 2008 New York Times,
Was McCain saying that it's less important to give working women the right to sue for equal pay than to give them help taking care of their families? There have been many attempts to expand the Family and Medical Leave Act to protect more workers who need to stay home to take care of a sick kid or an ailing parent. "We've never gotten his support on any of that agenda," said Debra Ness, the president of the National Partnership for Women and Families.

We also have yet to hear a McCain policy address on how working mothers are supposed to find quality child care. If it comes, I suspect the women trying to support their kids on $20,000 a year are going to learn they're in line for some whopping big income-tax deductions.

Let them eat dinner mints.

Stanford Law School graduate and Slate legal columnist Dahlia Lithwick gives a good rundown of some of the arguments against the bill. However she fails to address the contention laid out by Hans Bader of the Competitive Enterprise Institute that the

majority [on the Supreme Court] didn't prevent the plaintiff from obtaining relief: Her inept lawyers and the plain language of the statute under which she sued did. The majority pointed out that the plaintiff could just as easily have sued under the Equal Pay Act, which specifically bans sex discrimination in pay, and has a longer statute of limitations - and broader definition of discrimination - than the statutory provision that the plaintiff sued under. If she had done that, she probably would have won her lawsuit. But she didn't do that.

I haven't seen any explanation of why her attorneys decided not to file under the Equal Pay Act, but Bader ignores the question of whether the 180 day time frame for the Civil Rights Act is reasonable.

Lithwick also omits the argument later posited by Eric Posner, a University of Chicago Law Professor, also writing for Slate, who while not supporting Miller's bill, offers that Congress might need to change the limit:

Perhaps Congress should amend the [Civil Rights Act]...in order to bring it into line with state statutes of limitation for torts and breaches of contracts, which usually run for a few years. The problems of proof that arise from pay discrimination seem similar to those for a range of fraudulent acts, where an underpayment of some sort is concealed from the victim. In many states, the clock for a fraud claim does not begin to run until the violation could have been reasonably discovered. Perhaps this approach would work for antidiscrimination law.

If either Bader or Posner have made valid contentions, it begins to look like members of both sides of the aisle and the President have been playing politics, rather than seeking a remedy.