Constitutional Law

All I Want For Equal Pay Day Is . . .

by Fatima Goss Graves, Senior Counsel at the National Women’s Law Center

April is now here — the Cherry Blossoms are blooming in D.C., warmer weather has returned, and many are at least thinking about spring cleaning. April is also a time for commemorating Equal Pay Day. Equal Pay Day is observed in April to mark the point in each year at which an average woman’s wages finally catch up to the wages earned the year before by the average man. And this year women, who make 77 cents for every dollar a man makes (63 cents for African American women and 52 cents for Latinas), reach that point on April 22nd.

I’ve already decided what I want for Equal Pay Day. True, typically gifts are not exchanged — indeed, if there were a gift it would be finally closing the wage gap so that Equal Pay Day would no longer be a necessary commemoration. But this year workers are still reeling from the Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co. from last term and so a shorter term gift is in order.

Just a bit of background on the decision — for many years, the supermajority of courts (indeed, 9 of the 10 courts to consider the issue) and the EEOC applied a commonsense rule to pay discrimination claims: each paycheck renews the discrimination and the statute of limitations. Then came Ledbetter. Lilly Ledbetter spent close to 20 years at Goodyear receiving pay that was far less than the amounts earned by male co-workers performing the same job. But she did not have firm evidence of discrimination until very close to the time she retired, when she received an anonymous note informing her of the pay discrimination. Nonetheless, last May the Supreme Court ruled 5-4 that employees have only 180 days after the first discriminatory paycheck to file a formal complaint, even when the discrimination persists to the present time and even when employers continue to gain a windfall from it.

The Ledbetter decision turned the longstanding circuit court and EEOC rule on its head. Not only is it unworkable (pay information is often confidential and, unlike other forms of discrimination, paychecks are not announced, or treated by employees, as adverse employment actions), but it also provides incentives for employers to hide discriminatory pay decisions for the first six months, hoping to then discriminate free of charge.

Last summer the House of Representatives responded swiftly by passing legislation to restore the law to the way it has always been. The Senate introduced similar legislation in the Fair Pay Restoration Act. The Act makes clear that compensation discrimination claims accrue whenever a discriminatory compensation decision or practice is adopted, when a person becomes subject to the decision or practice, or when a person is affected by the decision or practice, including whenever he or she receives a discriminatory paycheck. This legislation would ensure that workers are protected from workplace discrimination as Congress intended.

The National Women’s Law Center has more information on how you can help commemorate Equal Pay Day or participate in the Fair Pay Campaign. Lawyers and law students can also get involved here.

Full post as published by ACS Blog on December 31, 1969 (boomark / email).