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8 Responses

  1. Libertarian1
    Libertarian1 January 6, 2009 at 1:39 pm |

    Thank you for allowing me to comment. Here is a hypothetical case and the problem I find with the proposed law.
    In 1980 ABC Corporation hires a new employee, lets call her Ledbetter. She starts work and comes in late 1-2X/week for 6 months. Her boss says this is not acceptable and she must shape up. At the 6 month review instead of raising her salary by 5% she only gets a 4% raise.
    She is smart and learns the lesson. She never comes in late again and for the next 30 years gets the exact same 5% raise everyone else gets.
    In 2010 she sues saying that the original 4% raise was discriminatory and only occurred because she was a female. She wants 30 years worth of backpay.
    OK, lets ask the boss who originally docked her pay. Why did he do it? He died 20 years ago. Let’s ask her coworkers from 1980. They retired 15 years ago and have no idea. What does the employment record show? Nobody kept those records back then. Bottom line, proof is absolutely impossible. “She said” and nobody to be “he said”.

    That is exactly why the law specifically limited the filing to 180 days. If you are truly looking for fairness how would you cover this situation? SCOTUS was exactly correct. The law said 180 days not 181 days and not what you think should be fair.
    What you will get is every single time an employee does anything “wrong” it will per force go into her permanent record. Is that really what you want. CYA at all times?

  2. anti-authoritarian
    anti-authoritarian January 6, 2009 at 2:18 pm |

    We don’t know who has kept records and who has not. But should women lose out because some employers failed to keep records? Maybe some women will be able to prove the pay disparity was about their sex category and not their work performance while some women won’t be able to. But right now, many women have no way at all of challenging their decades-in-the-making pay discrimination.

    We can keep thinking of various hypothetical cases to argue against the Lily Ledbetter Fair Pay Act. At the end of the day, though, what’s at stake is economic justice for women and women’s ability to challenge pay discrimination.

  3. Angela
    Angela January 6, 2009 at 3:27 pm |

    Libertarian1, you’re correct. Most employers destroy old employee records after 7 years. This is due in part to the paper reduction Acts of 1980 and 1995.

    AA, women can challenge, but without the necessary documentation to back it up their claims, they’ve got nothing.

  4. KJ
    KJ January 6, 2009 at 3:49 pm |

    Two points, Libertarian1:

    1. Recovery is limited to a two year period. Your hypothetical plaintiff would receive only two years of backpay if if she was successful in her suit. Also, Title VII places a cap of $300,000 on compensatory and punitive damages. There is little incentive for a plaintiff to wait 30 years to file a claim if s/he knows about the discriminatory pay, because in most cases the plaintiff’s compensation/wages total will be much less than if she had challenged the decision 30 years prior, assuming the claim has merit.

    2. The plaintiff in a pay discrimination case bears the burden of proof. As the American Bar Association argues in their statement (PDF) to the Committee on the Health, Education, Labor and Pensions of the Senate, “delay in filing will disadvantage the plaintiff, if anyone, since it is the plaintiff who has to meet the burden of proof.” If there isn’t sufficient evidence, the plaintiff won’t recover.*

    This Act is designed to allow recovery for individuals who don’t know that they have been discriminated against within the statutory period as defined by the Supreme Court. It does not incentivize waiting around to file a claim.

    Is it possible that some people might try to abuse it? Sure. That’s a risk with every law. But that doesn’t, I would argue, outweigh the value of this Act. As it stands, the law is essentially toothless for many women who are discriminated against – all an employer has to do is make sure the employee doesn’t find out about the discriminatory pay decision for 180 days to avoid any liability.

    *Of course, there are significant legal expenses for an employer faced with a discrimination suit. This is unfortunate, but shouldn’t limit an employee’s ability to recover for legitimate claims.

  5. Peter
    Peter January 6, 2009 at 5:33 pm |

    Better yet, call your Rep’s office, don’t email.

    Email is pretty much ineffective these days.

  6. Think Girl » Lily Ledbetter Fair Pay Act = (Reproductive) Justice

    [...] first on their list? In a moment of divine goodness, the Lily Ledbetter Fair Pay Act looks to be the first piece of legislation to address. As we near the end of the world as we know it and swear in President Elect Obama, there is near [...]

  7. MikeF
    MikeF January 6, 2009 at 10:13 pm |

    I think KJ has it right. For the record, I think the SCOTUS decision was 100% correct considering how the current law is worded. But as someone with generally libertarian sympathies, I see nothing noxious in this bill.

  8. digg » Blog Archive » Lily Ledbetter Fair Pay Act = (Reproductive) Justice

    [...] first on their list? In a moment of divine goodness, the Lily Ledbetter Fair Pay Act looks to be the first piece of legislation to address. As we near the end of the world as we know it and swear in President Elect Obama, there is near [...]

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