Unequal Under the Law

Posted on Apr 30, 2008

By Ellen Goodman

    BOSTON—By now the Tale of Lilly Ledbetter is beginning to sound like the Perils of Pauline or the Pre-Feminist Follies. At 70 years old, she’s the star of a long-running drama about how hard we have to run to keep from slipping backward.

    The Alabama woman was just 26 when Title VII of the Civil Rights Act of 1964 was passed to enforce equality in the workplace. The old stalwart—equal pay for equal work—is so universally accepted that we choose to believe it’s not just a law but a fact of life.

    Our gal Ledbetter, however, worked for two decades in the not-so-female-friendly ranks of Goodyear. Only when she neared retirement did an anonymous tipster slip her a reality check about her paycheck. It turned out that as a female supervisor, she was earning less than her male counterparts. She was paid on average 79 cents for every male dollar, a figure suspiciously close to the national wage gap.

    Ledbetter sued and won her case. But Goodyear appealed all the way to the Supreme Court, where Samuel Alito had just replaced Sandra Day O’Connor. Last year, in one of the backward flips that characterize the court, a 5-4 majority went against Ledbetter on the grounds that she hadn’t sued in time. The justices read the law through their retro lens and decided a worker has to sue within six months after her first unequal pay. It doesn’t matter whether she knows she’s being treated unfairly and it doesn’t matter if she keeps getting underpaid.

    In essence, as Marcia Greenberger of the National Women’s Law Center said, if a company could pull the wool over an employee’s eyes for the first six months it’s free.

    An outraged Justice Ruth Bader Ginsburg called the decision “totally at odds with the robust protection against workplace discrimination.” She concluded her ringing dissent with an appeal to Congress to “correct this court’s parsimonious reading of Title VII.”

    Well, the House of Representatives did just that and pretty promptly. They passed a bill to restore the rules to allow an employee to sue up to 180 days after the latest unequal paycheck. But when the bill bearing Lilly Ledbetter’s name got to the Senate, the Republicans balked. There weren’t enough Republican defectors to overcome a filibuster and get the bill on the Senate floor.

    Not only did Bush threaten to veto the restoration act, his would-be Republican successor didn’t even take time off the campaign trail to vote. John McCain let it be known that he opposed the Ledbetter legislation because it “opens us up to lawsuits for all kinds of problems.” This is a little like saying we shouldn’t have any laws because they only clog up the courts.

    So Lilly lost again. Welcome to 2008. Or is it 1964?

    If you’ve been listening lately, the reasons for the tenacious wage gap between men and women in the 21st century have been dropped on the lap of working women. Women aren’t paid equally because they have this nasty habit of giving birth. Or they “opt out.” Or they choose jobs that let them get home before the kids’ bedtimes. Or they don’t know how to negotiate. The fault is not in our workplaces but in ourselves that we are paycheck underlings. 

    The idea that the wage gap might be because of, um, sex discrimination seems soooo 20th century. In fact, the Supreme Court implied that Lilly Ledbetter’s lower paycheck was her own fault because she didn’t start investigating her employer for sex discrimination as soon as she started her job.

    Today women are a mainstay of family income and often the whole income. But an entire agenda of work and family issues is stalled while we’re forced to protect—and sometimes lose—the gains won 44 years ago.

    As for the conductor of the Straight Talk Express? McCain said he was all in favor of equal pay for equal work, but that women don’t need lawsuits, they need “education and training.” So let’s begin with a couple of basics.

    Lesson One: An unequal paycheck is a thief that keeps on taking. Even in retirement, Ledbetter is still, in her own words, “a second-class worker” with a pension and Social Security check that carry Goodyear’s bite marks.

    Lesson Two: In 2008, the Republicans are partying—political partying—like it’s 1964.
   
    Ellen Goodman’s e-mail address is ellengoodman(at)globe.com.
   
    © 2008, Washington Post Writers Group

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