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What can you do if you discover that for most of your long tenure with your employer, you’ve been paid less than similarly qualified peers? You can sue under Title VII, but only if you can prove a recent act of discrimination and are willing to accept a potential jury award based on months of reduced earnings, not years.
That’s the upshot of the Supreme Court’s ruling in Ledbetter vs. Goodyear Tire & Rubber Co.
Advocates for women and other categories of people protected under Title VII are disturbed by the 5-4 decision. “As an organization that works on women’s rights, we’re deeply disappointed,” says Jocelyn Frye, general counsel at the National Partnership for Women and Families in Washington, DC. “We think it was a terrible setback for everyone concerned about equality in the workplace.” The National Partnership filed a friend-of-the-court brief in support of plaintiff Lilly Ledbetter.
Employers are pleased with the ruling, which they believe shows that the court’s new conservative majority won’t legislate social policy from the bench. “This is a decision that makes the law more consistent,” says David Ritter, a management attorney and chair of the labor and employment practice at Neal Gerber Eisenberg in Chicago. “On the main, this is the right decision, though there could be inequities in it.”
Ledbetter vs. Goodyear Tire & Rubber
The May 2007 high court ruling rejected the claim of Ledbetter, a manager who began her career at Goodyear with pay equal to that of her peers, all of whom were male. Year after year, she received smaller pay raises than her cohorts; by the time she sued in 1998, her annual pay was about $6,700 less than that of the lowest-paid man.
The majority opinion, written by Justice Samuel Alito, rejected Ledbetter’s contention that each low paycheck constituted a new act of discrimination. Title VII sets an Equal Employment Opportunity Commission (EEOC) claim-filing deadline at either 180 or 300 days (depending on the state) after a discriminatory act. The Supreme Court rejected the federal district court jury’s finding that each low paycheck reset the clock on the filing deadline.
The short filing deadlines for EEOC claims are intended to promote quick resolution of disputes between employers and workers. In her dissent, joined by three other justices, Justice Ruth Bader Ginsberg argued that employers’ traditional confidential treatment of compensation data makes pay discrimination different from other forms of bias. As Frye says, “It’s so hard to figure out whether you’re being paid fairly.”
What Can You Do If You Suspect Pay Bias?
Given the Ledbetter decision, employees’ best approach to minimizing the financial damage wreaked by pay discrimination is to nip it in the bud. “Keep good notes and documentation of your pay and increases,” Frye says. “If you hear about peers getting paid differently, try to get it on paper.”
Some experts say that workers must be more aggressive with their employers if they want to curb pay bias. “Employees will need to be more diligent,” says Kimberly Moore, a management attorney and partner with Strasburger & Price in Frisco, Texas. “They’re going to have to have a meeting with a supervisor if they think there’s an issue.”
Others believe a one-on-one confrontation with human resources is unrealistic. “Probably the best thing you can do is file an EEOC charge,” says Laurie Leader, a professor at the Chicago-Kent College of Law. “If you approach your employer about a pay issue when pay is so sacrosanctly confidential, your employer will look at you cross-eyed.”
But with claims based on less than a year of pay, a plaintiff’s attorney may not be willing to take cases on contingency, Leader says. “The decision will significantly curtail plaintiffs pursuing those claims.”
Employees can also file suit under the Equal Pay Act; however, that law, which applies only to gender-based discrimination, caps damages and does not allow you to sue for punitive damages (as you can under Title VII).
Some employee advocates believe the Ledbetter ruling could spur new federal legislation. “We hope Congress moves forward on a bipartisan basis to reverse this decision,” Frye says.
However, given our divided government, prospects for enactment of such a law are uncertain. “If the Democrats pass something more employee-friendly, Bush will veto it,” Ritter says.
