LILLY LEDBETTER, IVANKA TRUMP & GENDER DISPARITIES IN PAY IN THE U.S.

Today the Trump administration, with Ivanka Trump’s blessing, eliminated Obama Administration regulations geared towards reducing pay disparities in the United States. These rules were initially prompted by issues regarding gender disparities, but were written broad enough to encompass disparities based on race and ethnicity as well. Today in the U.S. on average woman earn 79 cents to every dollar men earn. The U.S. gender wage gap is 2.5% higher than it is in other industrialized nations.

If you had seen President Obama’s last State of the Union Address you would have been treated to the alarming image of half the chamber sitting quietly when the President called for equal pay for equal work. I have never understood the forces at play there. I wondered, did the GOP not believe in fundamental fairness? How does one explain to a wife, a mother or a daughter stone faced silence when the President of the United States called for equal pay for equal work? What does opposition to what appears to be fairly easy concepts of fundamental fairness say about us as a nation?

Lilly Ledbetter is a retired Goodyear employee. Starting in 1979, she worked in the company’s Gadsden, Alabama facilities. When she started at the company her pay was equal to the men. At retirement, her monthly pay was $3,727. Men with similar seniority were earning between $4,286 (the lowest) to $5,236 per month. Of course disparities in pay may be based on performance, Ledbetter had a series of negative reviews during her tenure at Goodyear. But she claimed that the poor reviews were based on gender discrimination. An Alabama Jury agreed with her on the evaluation issue and awarded Ms. Ledbetter damages flowing from the discriminatory treatment.

Goodyear appealed the case first to the Eleventh Circuit Court of Appeals and then to the U.S. Supreme Court. Just to be absolutely clear, the jury decided against Goodyear on the claim of gender discrimination. Under our system, we do not appeal the factual decisions of the jury (except insofar as the jury’s decision was based on an incorrect legal standard). We instead appeal “legal” issues. Here, Goodyear argued that Ledbetter’s claims were time barred because she had to bring her claim within 180 days of the alleged discrimination. Ledbetter did not learn of the pay disparities until she retired. Most of us are completely unaware how much our coworkers make. Unfortunately, at the time of Ledbetter’s case, the law made no specific allowances for this reality. Ledbetter argues that the statute of limitations should not begin until 1) she learns of the discrimination, or 2) her last pay check. These arguments was rejected by both the Court of Appeals and the Supreme Court. The Supreme Court was closely divided but in a 5–4 decision, the Court rejected Ledbetter’s claim. Ledbetter v Goodyear, 550 U.S. 618 (2007)

Justice Ruth Bader Ginsberg (hereinafter “The Notorious RBG”) wrote a dissent. When the Supreme Court issues rulings, the Court sits on the bench and gives short synopsis of what they decided. It is extremely rare for a justice to read a dissenting opinion from the bench. Justice Ginsberg had spent her entire legal career fighting gender discrimination personally and on behalf of all women. This case was obviously very important to her and she took the unusual step of reading her dissent from the bench. In her dissent, Ginsberg pointed out the flaw in the logic of a statute of limitations that would preclude a claim based on information the aggrieved party is not likely to posses. Ginsberg very specifically invited Congress to change the law. Congress accepted the invitation and passed the Lilly Ledbetter Fair Pay Act of 2009. Without getting too much in the weeds on this, the 09 Act provides that so long as the plaintiff files the claim within 180 days of the last act of discrimination, claims regarding early pay are incorporated into the claim.

While the 09 Act provided relief from illogical time limitations on these claims it did nothing to address the fundamental problem — employees continue to lack the information necessary to determine whether or not they are compensated fairly. This is a complex issue. Needless to say, every employee is entitled to privacy regarding pay and other compensation. But companies should not be able to hide behind privacy in perpetuating unfair pay practices.

The Obama Administration stepped in to attempt to deal with the void in information. In January, 2016, President Obama issued an executive order requiring companies with more than 100 employees to report to the Federal Government pay information broken down by race, gender and ethnicity. Such information is of vital importance. In order to assert a claim for disparate wage treatment one must be aware of the range of pay for your employer. Without such information, there is little check on these unfair practices. Today, the Trump administration rolled this policy back citing privacy and paperwork concerns. As to privacy, the reporting did not require that the company disclose individual employee’s pay information. As to the paperwork, these unfair labor practices costs individual wage earners thousands, perhaps hundreds of thousands of dollar over the course of employment. Paperwork is a negligible price to pay for fundamentally fair labor practices.

I remain at a loss for the logic of paying women less than men for the same work. These rules and claims apply to equal work, not the more complicated societal issue of how we value different services and to what extent such valuations reflect gender, class, race or ethnic disparities. What was at issue in the Ledbetter case, and the regulations Trump has now eliminated, is equal pay for equal work.

During the Republican National Convention Ivanka Trump gave a speech trumpeting issues of importance to working women and equal pay for equal work. In sharp contrast to the GOP response to Obama’s call for equal pay, the convention attendees applauded loudly for Ivanka’s call to arms. While I was surprised to see this newfound dedication to pay equality less than six months after Obama’s speech, I was hopeful that a new GOP administration would, with Ivanka’s lead, finally support the easiest form of equality. Today Trump made clear that the administration has no such intentions.