How long will women shoulder the blame for the pay gap?

The law, lawyers, and the court.
April 26 2008 7:33 AM

How Dumb Are We?

How long will women shoulder the blame for the pay gap?

John McCain. Click image to expand.
John McCain

On Wednesday, Senate Republicans blocked a bill that would have overturned a Supreme Court ruling (PDF) that sharply limited pay-discrimination suits based on gender under Title VII. In Ledbetter v. Goodyear (2007), the Supreme Court, by a 5-4 margin, held that the clock for the statute of limitations on wage discrimination begins running when the employer first makes the decision to discriminate, and does not run for all the subsequent months—or in this case, years—that the disparate paychecks are mailed. Justice Samuel Alito, writing for the court, found that the plaintiff in this case, Lilly Ledbetter, was time-barred from filing her discrimination suit because it took more than 180 days after she first got stiffed to discover that she was being stiffed on account of her gender. The court agreed her jury verdict should be overturned.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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, in effect, just protecting us from the dangerous laws that protect us. Whew.

For the purely Vulcan reading of the case, Justice Alito's opinion offers some good reading. But for those of you who suspect that gender discrimination rarely comes amid the blaring of French horns and accompanied by an engraved announcement that you are being screwed over, it's worth having a gander at Justice Ruth Bader Ginsburg's dissent.

Ledbetter worked for Goodyear Tire in Atlanta for almost 20 years. When she retired, she was, according to Ginsburg, "the only woman working as an area manager and the pay discrepancy between Ledbetter and her 15 male counterparts was stark: Ledbetter was paid $3,727 per month; the lowest paid male area manager received $4,286 per month, the highest paid, $5,236." So she filed a suit under Title VII, and a jury awarded her more than $3 million in damages. The jury found it "more likely than not that [Goodyear] paid [Ledbetter] a[n] unequal salary because of her sex." You see, Ledbetter hadn't just negotiated herself some lame salary. She was expressly barred by her employer from discussing her salary with her co-workers who were racking up raises and bonuses she didn't even know about. She found out about the disparity between her pay and her male colleagues' earnings only because someone finally left her an anonymous tip.

There is plenty of evidence that all this had nothing to do with her job performance. Quoting Ginsburg again, "Ledbetter's former supervisor, for example, admitted to the jury that Ledbetter's pay, during a particular one-year period, fell below Goodyear's minimum threshold for her position." The jury also heard evidence that "another supervisor—who evaluated Ledbetter in 1997 and whose evaluation led to her most recent raise denial—was openly biased against women" and that "two women who had previously worked as managers at the plant told the jury they had been subject to pervasive discrimination and were paid less than their male counterparts. One was paid less than the men she supervised." Ledbetter was told directly by the plant manager that the "plant did not need women, that [women] didn't help it, [and] caused problems."

Stop me when you're convinced that maybe her gender was the issue here …

The Lilly Ledbetter Fair Pay Act, already passed by the House, would have reinstated the law as it was interpreted by most appellate courts and the Equal Employment Opportunity Commission, i.e., that every single discriminatory paycheck represents a new act of discrimination and that the 180-day period begins anew with every one. Yet 42 members of the Senate—including Majority Leader Harry Reid, but only procedurally to keep the bill alive—voted to block cloture. How can that be? As Kia Franklin notes here: 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've got the green light to treat female employees badly forever. Why isn't this problem sufficiently real to be addressed by Congress?

Have a look at some of the reasons proffered:

• The White House threatened to veto the bill even if Congress passed it. Why? The measure 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 nobody wants businesses to face prospective lawsuits for conduct from 20 years earlier. But unless an employee is psychic, 180 days is simply not long enough to sniff out an ongoing pattern of often-subtle pay discrimination. The notion that expeditiousness in resolving legal disputes should altogether trump one's ability to prove them is cynical beyond imagining. And 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. "Sorry, kids! SpaghettiOs again tonight, but just you wait till 2037! We'll dine like kings, my babies!"

• Sen. Orrin Hatch, R-Utah, 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 being manipulated by those scheming plaintiffs' attorneys. First off, some of us still believe that those damn civil rights attorneys do good things. But what really galls me here is the endless, elitist recitation that it's only the really dumb people—you know, the injured, the sick, and the women—who aren't smart enough to avoid being conned by them into filing frivolous lawsuits.

• Here's the other reason proffered to oppose the equal-pay bill: According to the invaluable Firedoglake, it seems that some women themselves are actually to blame for their inability to negotiate. No need to fix Title VII! Just build more aggressive women! Women also are apparently to blame for not chatting with their male colleagues about the differences in their wages, even when that's explicitly forbidden, as it was in Ledbetter's case. So remember, ladies, it's better to be fired for discussing your wages than to be paid less for being a woman.

• All of which brings us to Sen. John McCain, R-Ariz., who skipped the vote on equal pay 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's 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." As my colleague Meghan O'Rourke pointed out yesterday, all that is code for the obtuse 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. Wow. Hey! We should develop the superpowers of heat vision and flight, as well.

So, 42 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 don't 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? Well, if we don't vote some people who actually respect women into Congress soon, we just may be as dumb as those senators think.

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