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April 25, 2008

Comments

It ought to have been a no-brainer.

"No-brainer" unfortunately describes most Washington Republicans.

( I didn't invent this but am happy to pass it on.)

The properly Swiftian solution is that every woman hired to a new job should file suit immediately for salary discrimination. The statistics make it very likely that grounds will be found in discovery. Furthermore, women denied positions they've applied for should also file suit; evidence of sexual discrimination is again very likely.

Businesses could remove their risk for that by simple openness about hiring and compensation, but who's going to be crazy enough to do that?

This is such an entirely pure example of how conservative politics is about making poor people poorer and rich people richer, that I await with reasonable certainty the arrival of at least one of Obsidian Wings conservatives to explain to us that it's a good thing the Republicans filibustered this bill, because if they'd let it pass, people who had been receiving less pay than equally-qualified colleagues doing the same job would use it to sue their employers, and this is obviously a bad thing...

...since it leads to poor people getting a bit less poor, and that would never do.

Oh, and someone is bound to use the argument that this could lead to a small-time employer who has just been getting by, going out of business. Or even large corporations going out of business because of the amount they have been sued.

Before they do, let me pre-empt that argument. If true, those employers have been getting by. by means of the money saved by paying the women who work there substantially less than the men. The conservative argument appears to be: having got away with defrauding female employees for many years, they ought not to have to pay for that. Likewise, only more so, for major corporations.

Now, a conservative who tries to make that argument is rather revealing that he - and my guess most of the people arguing this here will be male - really believes that when women work, we don't deserve equal pay to men or fair treatment: we are an exploitable resource that ought not to be able to protest.

Moving on...

Equal pay for equal work is a basic step that it's distressing but unsurprising to see that the US is unable to get on to.

But there are a lot of other steps required to close the pay gap.

Equal pay for work of equal value is the next step - it's too common to find jobs in an industry segregated by type, one type mostly gendered male and paid more, other types mostly gendered female and paid less. (In computing, for example, software engineers are 95% male and are paid substantially more than technical writers, a field about 50% female.)

Another basic step is paid maternity leave with right to return to work, no discrimination allowed as a result.

Another step is acknowledging that childcare is a necessary part of working life and that deciding to discriminate by denial of pay rises or promotions people who work part-time because they are also carers.

A final step - one difficult to legislate - is not to penalize people who work 8 to 5 and take a lunch hour, in favor of people who spend their waking lives at work because no work/life balance is how you get the money and the promotions and never mind that (if you're female) this means not having children, and (if you're male) this means... well, pretty much this means not having children, though as recently as 15 years ago I knew plenty of men who worked that killer schedule and saw their children at weekends.

I agree on the merits, but if I read it right, the law was explicitly designed with a short fuse. Probably this was/is the poor compromise the economy needs. Because, if Ledbetter won, almost every retiree who at some distant point in the past might perhaps have been discriminated against could sue if that discrimination was somehow reflected in their eventual pension/paycheck.
As much as it sucks for lifelong victims of discrimination, it is a poor idea to leave companies open to these kinds of lawsuits until all their former employees die off. Even with the best of efforts, some trials concerning events and personell from 30 years ago will be lost, and companies would hence have to set aside substantial amounts of money for settlements and legal costs that not only would cripple some, its sudden imposition would give an tremendous unfair advantage to recently formed (restarted) companies.

That said, remedy for lifelong victims of discrimination is important, and companies found to have engaged in (and thus profitted from) discrimination across the board shouldn't be immune just because the clock ran out. But the right way to deal with this issue probably isn't the removal of the 180 day limit.

I think this is a fascinating principle of law that could be extended to other areas. For example, I have been dumping massive quantities of dioxins into my town's drinking water since mid-November. If I can only get through another few weeks before someone notices the massive epidemic of birth defects, the law won't be able to touch me!

Because, if Ledbetter won, almost every retiree who at some distant point in the past might perhaps have been discriminated against could sue if that discrimination was somehow reflected in their eventual pension/paycheck.

Yeah. But then, since 1963, it has been illegal for any employer to discriminate, "within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions".

So this would only apply to companies that have broken the law - and can be shown to have broken the law.

As I said above: I won't be in the least bit surprised that conservatives will show up to argue earnestly that lawbreakers who penalize the poor to the profit of the rich ought not to have to run the risk of being sued for their crimes.

After all, what is the law for, according to conservatives? It's not as if it's an instrument of justice, open and fair to all: it's a means of keeping the lower orders in their place. What nonsense of Ledbetter to think she could be allowed to receive compensation just because her employer broke the law and profited by its lawbreaking at her expense!

On the up side, it will make a nice campaign bludgeon.

All things considered, though, I think I'd rather have a just law.

Jesurgislac--

To digress slightly, shouldn't several of the issues you raise be considered as a separate issue? That's a parental rights / childless rights issue somewhat separate from strict gender concerns. As someone who will very likely never have children, I tend to be somewhat sensitive (perhaps unduly resentful) to special privilege given to people who make that particular lifestyle choice. I think it's something that should probably be taken separately from the basic issue: that women deserve equal pay for equal work, and a legal system where those rights are genuinely enforceable.

And "equal pay for work of equal value" is really a bit of a supply/demand issue, unless you feel there are structural or cultural factors causing market failure. Software engineering requires more specialized technical knowledge than being a technical writer, and the market seems to think they are more valuable from a supply/demand point of view. We need more women in software engineering-- and we need to address the very real cultural issues that construct the de facto gender segregation in technical professions, which you identify. I think that throwing our hands up and saying "this is a male profession, that is a mix gendered profession, let's equalize the pay scale" is a measure unlikely to solve the issue.

The claim of trouble about "old" discrimination cases could be easily defanged by putting a clause in that says that it is not retroactive except in cases already pending. Of course I would expect attempts to have the whole law declared unconstitutional because of allegedly violating the "freedom of contracts" or something similar but that is a different question.
I do not expect to much subtlety from those opposing the law, a lot will be the usual "not really equal work" arguments (Female brains weigh less than male ones and males have on average more muscle mass. Females are also less rational and their place is at home anyway. They should be grateful that they are paid at all. Their presence distracts their male coworkers, thus reducing productivity...you know the drill*).

*maybe even the old "females contain more water and are therefore more volatile and affected by the moon".

As someone who will very likely never have children, I tend to be somewhat sensitive (perhaps unduly resentful) to special privilege given to people who make that particular lifestyle choice.

Having children is not a 'lifestyle choice'. It is how a society survives. Who but other people's children are going to look after you and care for you and pay taxes for the services you use when you're too old to do so for yourself? A society that doesn't value parenthood (and one that thinks that if you do anything to help mothers in the workplace it's somehow unfair), is no longer a society: it's just a bunch of disconnected, selfish individuals, with no sense of any wider benefit.

Anthony: As someone who will very likely never have children, I tend to be somewhat sensitive (perhaps unduly resentful) to special privilege given to people who make that particular lifestyle choice.

How different we are! As someone who knows she will never have children, I tend to be strongly appreciative and grateful to the people who are doing the extremely hard work of parenting the next generations. "Special privilege" does not apply: I was not advocating any "special privilege" - I was advocating that people who are doing the hard and necessary work of parenting should not be required to get by on less money than the people who are not doing this hard and necessary work.

That's a parental rights / childless rights issue somewhat separate from strict gender concerns.

Well, a little bit separate. There is a straightforward issue about paid maternity leave/breastfeeding support at work, which is very much a gender concern: a woman who's just given birth needs to be able to take time off work without it counting against her sick leave, her pay, her promotion prospects, or indeed her annual vacation time. That's gender-based because only a woman can give birth and breastfeed: but the other parent (male or female) should also be able to provide support for their child and for the birth mother, without it counting against their sick leave, their pay, their promotion prospects, or indeed their annual vacation time.

Once the baby isn't a baby and isn't being breastfed as the child's only source of nourishment, at that point parental leave becomes (or should become) a gender-neutral issue: the other parent should get to work part-time in order to be able to provide care for pre-school children as well as the birth mother, and both parents benefit by adequate and affordable daycare, and both parents should be able to take time off to take a child to the doctor or stay home to look after a sick child.

Caring for children isn't a privilege. It's bloody hard work, and I'm deeply grateful to and appreciative of the people who do it.

We need more women in software engineering-- and we need to address the very real cultural issues that construct the de facto gender segregation in technical professions, which you identify.

Actually, what I'd have preferred when I was a technical writer was to address the very real cultural issues that led many software engineers to decry technical writers and claim our work was of little value, because who cared if the users knew how to use their code, so long as it was delightfully constructed?

(This didn't apply to all software engineers by any means - I knew many, too, who knew their work and mine were of equal value.)

If you don't change the cultural attitude that says what women do is of less value than what men do, then as more women become software engineers, writing code will be regarded as less valuable work.

The Ledbetter decision exemplifies what will be the hallmark of this court for many years to come: it is likely to be the most pro-business court in history (or, at least the most pro-business court since the early 20th century). It's going to expand the federal pre-emption doctrine (where a federal law/regulatory regime pre-empts all state law on the subject), as seen with the recent decision where it barred state tort suits against drug companies as long as they met FDA labeling standards (IIRC). Look for it to next decide that states like California can't have emissions standards that are more restrictive than those set by the EPA.

Really, we haven't seen anything yet, I'm guessing. And if McCain gets to appoint the replacements for Stevens and Ginsberg, it will go even further.

Yeah. But then, since 1963, it has been illegal for any employer to discriminate, .... So this would only apply to companies that have broken the law - and can be shown to have broken the law.
Surely, and again, without wanting to deny the cry for justice, there's good reasons all sort of charges and claims have to be filed within certain timeframes. Among others, it's a pragmatic solution to the fact that witnesses forget stuff as time goes by and that everyone is ultimately better off being save from certain claims and suits after a period of time.
Since the case strikes me as a similar to fraud :
A plaintiff, however, can prevent the dismissal of his action for untimeliness by seeking to toll the statute. ... Mere ignorance of the existence of a cause of action generally does not toll the statute of limitations, particularly when the facts could have been learned by inquiry or diligence. In cases where a cause of action has been fraudulently concealed, the statute of limitations is tolled until the action is, or could have been, discovered through the exercise of due diligence. (supposedly from West's Encyclopedia of American Law)
Seems clear enough to me. Ledbetter knew sexual discrimination was happening in general and knew it was illegal. Inquiries wouldn't have been out of place and would IMHO fall under due diligence. She didn't inquire untils years afterwards and now finds her claims invalidated by the 180 day period which was put into the law on purpose. It isn't a default value from somewhere else.
This may not feel just, but it is the correct result under the laws as written.

If you/we want to change those laws, it is upon you/us, to argue for such changes and take into account _all_ their implications and ramifications. Sure, it's more satisfying (and, to finally get to the root problem here: a better political weapon) to simply remove the time limit, let the other side vote against and bludgeon them with it come election time. But it's irresponsible.

Again, statues of limitation exist for good reasons even if they're easy to attack on fairness grounds in individual cases. But it is to everyone's benefit that the dude you sold your car to can't sue you for fraud twenty years afterwards. And it is essential for companies to be able to close the book on (and free money set aside for) possible violations after a certain period of time.
And yes, all statutes of limitation mean that some guilty people get off free, get over it or make a serious case for a general overhaul of the legal system.

Absent such a case, the Democrats move here is just a cheap political ploy, and should rightly be decried as such. If they were serious about discrimination or the Ledbetter case, they'd offer a much better solution than simply opening up all companies to suits based on events from 30 years ago. That they'd be willing to do so is a clear case of poor lawmaking, even in the unlikely case that the move is well intentioned.

Among others, it's a pragmatic solution to the fact that witnesses forget stuff as time goes by

Payroll records, on the other hand, tend to stick around.

and that everyone is ultimately better off being save from certain claims and suits after a period of time.

Uh huh. I take it "everyone" in your mindset explicitly excludes women, since "everyone is ultimately better off" fairly clearly does not include women who were illegally and systematically paid less than men doing the same work, and who are now not allowed to get back from the employers the money the employers were legally obliged to pay them.

Look: existing law has been interpreted for ages as saying that yes, you do have to file within 180 days, but that the event you have to file within 180 days of is any paycheck that's too small because of discrimination. The proposed law only makes explicit what was, until a few months ago, the standard interpretation. It does not say you can file lawsuits whenever you want, forever; nor does it change the fact that this is a law with a short fuse.

Ok, so what have we established here? I suppose that "Let justice be done, though the heavens fall!" is not the animating principle of the Republican party. They'd rather let old injustices be treated as history. Knew that already...

OTOH, I suspect the animating principle of the Democratic party, in this case, is something closer to, "Let lawsuits be filed, though the tort lawyers will become wealthier!", than anything having to do with justice. Much, perhaps most of the wealth tranfer resulting from this law taking effect would go the lawyers, a major interest group of the Democratic party. Not an accident, we may presume.

Jes: You’ve built up quite an impressive straw-conservative here. But I really don’t know any who believes that women deserve to be paid less. Frankly I’m appalled that this woman was screwed over for her entire career. On the law I’m somewhat torn – obviously this is a case that deserves to go forward. OTOH I believe that there probably needs to be some limitations. The balance (for me) would be that if you can prove you had no knowledge of the disparity then time limits should not apply.

Years ago I worked for a software company that sold payroll software. In dealing with the upper management of the companies that bought it one thing became very clear to me: they lived in fear that their employees would discover what everyone else was being paid. They tended to be pretty lackadaisical about security with their other systems. But payroll data? Worrying about that kept them up at night.

On most of your other points I agree with you. I don’t have children and if I stipulate that providing a new generation is necessary (some days I’m not sure) I’m glad that someone else is doing it. But I still feel resentful when I have to pick up the slack for weeks or months because a co-worker is out on maternity leave. I’m resentful when I write the check for school taxes, but then I realize that at least it keeps the little buggers off the streets for the most part.

And you’ll never find me dissin’ technical writers. I have a passionate hate for doing documentation so I’m grateful to the folks who willingly do it and do it well. Programmers are a dime a dozen these days. Good technical writers are a scarce commodity. Given the choice between hiring another programmer or a good technical writer I’ll take the technical writer every time. Well, unless of course the candidate is a female of child bearing age who is likely to get knocked up and leave me in the lurch for months… ;)

Since HR records are confidential the only way for me to find out what my colleagues are getting paid (in order to figure out if I'm being discriminated against) is through a lawsuit which allows me to compel discovery.

Wouldn't the appropriate response to combat the short fuse to file a lawsuit to generate discovery after every new paycheck? everytime I hear a colleague gets a raise? everytime a colleague gets a promotion over me? etc... I'm all for this interpretation of the court so long as they are willing to not grant summary dismissal on all my lawsuits. :-)

OCSteve: But I really don’t know any who believes that women deserve to be paid less.

Was that "know personally" or "know of"? Because there are 199 conservatives in Congress who voted for just that.

But I still feel resentful when I have to pick up the slack for weeks or months because a co-worker is out on maternity leave.

Yes, wouldn't it be great if you lived in a country where parenthood was valued enough that a co-worker could take a year's maternity leave and your employer could - radical thought! - hire someone on a temporary contract to take her place? But being a conservative, you must appreciate that it's more important that your employer should not have to pay out anything extra, so to keep your employer better off, you have to work the extra hours for no pay.

I take it you haven't thought this through far enough to think that you should resent your employer, for not hiring someone to do her work, and your conservative governments, for declining to value parenthood enough to support mandatory paid maternity leave? No? Too liberal for you? You prefer to resent the easy target - the woman who takes time off after she's had a baby. How very conservative of you.

And you’ll never find me dissin’ technical writers. I have a passionate hate for doing documentation so I’m grateful to the folks who willingly do it and do it well. Programmers are a dime a dozen these days. Good technical writers are a scarce commodity. Given the choice between hiring another programmer or a good technical writer I’ll take the technical writer every time.

Yeah. But, technical writing is a 50% female field. I could work as hard and as well as I could, and top grade for me would be 20% less than median grade for a software engineer. (I'm averaging. But I tended to ask these things.)

If you value technical writers, support equal pay for work of equal value.

Jes: Because there are 199 conservatives in Congress who voted for just that.

Really? They voted against equal pay for women?

You prefer to resent the easy target - the woman who takes time off after she's had a baby. How very conservative of you.

Jeeze its tough to even agree with you, which is what I primarily did. I can support something and be resentful of it at the same time. And why would you assume it’s a woman? Isn’t that, what’s the word I’m looking for here… sexist? Remember – it’s mostly men in the software industry. It’s the dads taking family leave that impacts me. As to temporary contracts – it’s not about the money. It’s a futile exercise because by the time you get a temp up to speed the guy is back. As well as picking up the slack you then also put time into getting a temp up to speed. You don’t walk in off the street and be productive from day one in this industry. It takes months.

Oh, and while we’re railing against conservatives here, lets not lose sight of the fact that this is little more than an election year political tactic on the part of the Democrats. Reid filed for cloture on Monday so a vote should have occurred Wednesday morning. But he adjourned the Senate to let Clinton and Obama get back into town for this vote. Democrats in Congress care about this primarily as a stick to whack Republicans with going in to the election. If Republicans were smart (yeah I laughed too when I typed it) they would have just voted for closure.

Is there no way to use fraud or deceit laws to get around the limitation period? Certainly the UK has such provisions (although the EC found them insufficient to make protection of equal pay effective). Doesn't the US?

I was going to say what magistra said in the 7:36 post, or to be honest, I was going to try to say it, but wouldn't have said it as well.
Anyway, what magistra said about children, child-raising, and society, and this is from someone who up to this point has only cared for cats. (That, I will grudgingly agree, is a lifestyle choice.)

OCSteve,

I think Obama is actually a co-sponsor for the bill. And Hillary as y'know... the first viable female presidential candidate in history, may have a small interest in voting for this bill as well. I don't think it was JUST a stick to bludgeon the Republicans with. (Though I prefer to think of it as poking them, POOOOKE)

Funny how, if they had actually passed the bill it wouldn't be a stick at all. Because, y'know, people would have rights and stuff, and wouldn't have anything to complain about.

If the republicans have a problem with just the way this bill is structured there is nothing preventing them from putting their own bill forward that does not have the same legal loopholes they seem to be concerned about. But instead they just block the legislation, that's productive.

Poor Republicans, to be so persecuted for denying citizens equal rights. *tear*

And why would you assume it’s a woman? Isn’t that, what’s the word I’m looking for here… sexist? Remember – it’s mostly men in the software industry. It’s the dads taking family leave that impacts me.

I'm sorry, I was thinking of the British software industry, where women software engineers get to take six months paid maternity leave and then return to their jobs. In the US, obviously, the women don't get to do that - they either do without children or they leave their jobs - so you aren't bothered by their taking family leave.

You don’t walk in off the street and be productive from day one in this industry. It takes months

Actually, I appreciate that problem more - given that the last time I had to deal with it, it was a woman who took her six months maternity leave and came back to work part-time.

But rather than resent her for having a baby, I resented our employers for being too cheap to hire enough people to cover for maternity leave.

Oh, and while we’re railing against conservatives here, lets not lose sight of the fact that this is little more than an election year political tactic on the part of the Democrats.

And blocking it is straightforwardly an ongoing political tactic on the part of the Republicans, to support their base against the rest of us.

If your argument is that Democrats only support equality when it's electorally advantageous, I agree that's bad: but it's yards better than the Republicans, who oppose equality at all times, because they rely on the majority of their voters being conned into thinking that what's good for the very rich is the right thing to vote for.

it's just a bunch of disconnected, selfish individuals, with no sense of any wider benefit.

From an interview on TPM with Allen Raymond, convicted of phone jamming in NH for the Republican party:

"America is about self interest, within the rule of law."

It's a social cancer, dressed up as a political position.

Thanks -

*grin* Though I have to admit, "the rest of us" is bad rhetoric on my part in this instance: it's been years since I worked for a US-owned company, and only under circumstances where they had to abide by UK/EU employment law.

, perhaps most of the wealth tranfer resulting from this law taking effect

"Wealth transfer." Only you could find a way to denigrate paying employees money to which they are legally and morally entitled as some kind of class warfare. Kudos.

OCSteve, I'm not clear how delaying the cloture vote in order to get two extra votes is inconsistent with actually thinking it's a good bill or caring about the issue it addresses. More votes generally being a good thing for the "pro" side. Were other senators unable to vote due to the delay?

In the US, obviously, the women don't get to do that - they either do without children or they leave their jobs - so you aren't bothered by their taking family leave

US women get up to, what, 12 weeks of unpaid time off, I believe? Still pretty crappy. And believe me, American women are starting to notice that their colleagues in Europe get a better deal on this stuff.

In the past couple of years, two of my co-workers have had children, one here in the US and one in the UK. My US colleague took her 12 weeks and came back to work full time. My UK colleague took her full six months and worked out a deal wherein she only works W-F every week now. Not for nothing is my US colleague a bit PO'd.

In both cases, btw, I gladly picked up their slack in the department. Somebody's gotta do the work, and if they're gone, it's me. They do mine when I'm on vacation. Big deal.

Carli Fiorna was the head of Hewlett Packard from 1999 to 2005. She was trumpeted as the first mainstream female CEO. The press loved her. You can’t fake it as CEO in the free market though.

1999 HP Quote: $60
2005 HP Quote: $20
Current Quote: $47

Look at the chart, it is stunning.

http://finance.yahoo.com/q/bc?s=HPQ&t=my

Ms. Fiorna was pushed out by ownership and left with a $21 million severance package.

Why did Reid vote Nay?

I have been thinking a lot about this, both after the Ledbetter decision and after the rethug filibuster. Here are some things that stick out to me:

First, the decision is inconsistent with the way statutes of limitations generally work. Under traditional contract law, if you have a contract that calls for installment payments, each payment that is a breach of contract provides a new opportunity to sue, with a new statute of limitations. I also saw a similar approach under some federal law I can't remember -- maybe about lending disclosures? Anyway, we are treating workers worse than we treat parties to other contracts. No surprise, but interesting.

Second, one rationale for the rule is that you don't want employers to have to defend old decisions. However, the Ledbetter approach doesn't avoid this problem, since any new female employee paid in accordance with the old rule will have a chance to sue with her first paycheck.

Finally, McCain's statement about how women need "training and education" to deal with pay inequality strikes me as the dumbest and most discordant of all his dumbass statements. It is really not going to help him with the ladies in the fall.

Why did Reid vote Nay?

It's a parliamentary maneuver; only someone who voted with the majority can ask that a vote be reconsidered. The Majority Leader usually takes that responsibility.

they lived in fear that their employees would discover what everyone else was being paid.

Yes, quite right, that is the normal situation. It's a reasonable one. It avoids a lot of resentment and other weirdness.

That's why the Ledbetter decision is so crappy. If you're being screwed, you now have six months from the time it starts to find out, otherwise you have no legal recourse. And, the culture of business, for perfectly good reason, is set up to prevent you from ever knowing if you're being screwed or not.

This makes the protection afforded by the law more or less worthless. Unless folks want to start filing suits to discover the relative pay rates of all of their peers.

Imagine the fun and hilarity that will ensue.

It's a stupid decision, and the Republicans are stupid to support it. If it turns into a cudgel with which to beat them, it's on them.

Policy-wise, the federal government is the big show, and conservatives are perfectly capable of playing the game. If you hand your opponent your petard, you can more or less count on being hoist by it. They'll just have to suck it up.

I'm not sympathetic to their plight.

Thanks -

What really interests me here, outside of the legal fundamentals of pay parity, is the social practice of keeping remuneration completely secret ......

.... yes, I know all of the reasons for it .... privacy, professional ethic, racheting down inevitable jealousies and resentments in the workplace. etc.

But, I think it is fascinating how this social more of a sort of conspiratorial silence generally ends up working to protect whatever entity is shelling out the cash and those who, for whatever reason, including superior competence etc, top the pay scale.

It is this practice of silence that has permitted pay discrimination of all kinds to flourish.

I wonder what would happen (other than multiple hands reaching down the intertubes and strangling commie me) if, say, it was somehow stipulated that Hilzoy, Slart, Sebastian, Brett Bellmore (I'll bet the tort attorneys keep their pay secret, too, so that other tort attorneys don't get any funny ideas), Ugh, and Nell would receive absolutely equal pay and benefits regardless of their job descriptions.

Who would be the first to throw up their hands and ask what's the point of working and achieving if so and so and their meager contributions get the same amount of money that they do?

Joke here: Sebastian, I suspect, because he is inordinately competent, principled, and polite (joke still coming, that wasn't it) wouldn't be the first to complain. He might remain silent and then put forward suggestions that the rest of us could make some fairly simple and economical lifestyle changes to suit our circumstances and then begin handing out lentil recipes, coupons for rice cookers, and ads for used KIAs.

I would probably take a different tack (end joke) and volunteer to remain out of the workforce for a relatively modest stipend with health insurance.

Less competition for everyone else, perhaps some lessening of incompetence and unprofessionalism, and so on.

Everyone wins.

Folks mentioned upthread that child-rearing is basic and important to EVERYONE and I concur, natch, having stayed home with the kid for a long time, but there are libertarians among us who solve that problem too.

The kid can go get a job within three months of being weaned. It's easier, too, to keep secret their meager comparative pay ... plus you can take what they DO earn and tell them you're putting the money in their college account down at the corner pub.

Donald Johnson:

I love cats, too, but you know, I trust, that the reason they sit there silently sphinx-like, sunning themselves and going out and coming in and going and coming in, is that they don't dare tell you what they are being paid for that job.

We couldn't handle it. Why, we'd file a complaint with Human and Feline Resources.

Last point:

I believe poets should be paid more than anyone else, even for one great poem. It is a crime to me that the rest of us steal their labor for such meager returns. They die broke (just in time, mind you, so that others can sell their now scarce poems at high prices), and work second and third jobs just to keep themselves in foolscap, the fools.

But don't tell them.

Isn't it amazing that even when the thread isn't about terrorism, Brick Oven Bill still manages to come up with something completely irrelevant?

John Thullen: I love cats, too, but you know, I trust, that the reason they sit there silently sphinx-like, sunning themselves and going out and coming in and going and coming in, is that they don't dare tell you what they are being paid for that job.

I cut a deal with my cats' union. We get equal pay for work of equal value. Every hour I spend sunning myself and/or asleep, I get paid the same as they do, even though the cuteness factor is so much lower, because I contribute more to the household stock of cat food. The cats argued that their work bringing back mice and insects is skilled and my work buying it at the supermarket is unskilled, but I brought up the opposable thumb argument and won on points.


Probably not coincidentally, my company actually does make available your pay relative to your range in your group. It's not exactly the data you'd want to have, but it does give you ammunition without introducing the wierd kinds of resentment russell alludes to.

I'm not sure when they introduced this policy, but I'd bet it was sometime in the last decade.

WRT the case in point, I don't know enough about it to comment intelligently. So, shockingly, I'm going to stay mum.

Thullen, just don't take away my stapler.

..."Brick Oven Bill still manages to come up with something completely irrelevant."

.. and it's ticking me off just a bit, because irrelevancy is my niche here, dang it.


Slart:

Everyone gets to keep their staplers. With six staples per individual, which I hope doesn't disincentivize stapling for anyone.

Bersides, I though you used a nail gun to submit those forms in triplicate.

Hm.

Thinking about this further-- if we take the Republican concerns as being in good faith (ha!), perhaps leaving the limitation at six months might be more acceptable if companies were required to disclose median pay for a given position...

Look: existing law has been interpreted for ages as saying that yes, you do have to file within 180 days, but that the event you have to file within 180 days of is any paycheck that's too small because of discrimination. The proposed law only makes explicit what was, until a few months ago, the standard interpretation. It does not say you can file lawsuits whenever you want, forever; nor does it change the fact that this is a law with a short fuse.

SC:
"A new violation does not occur, and a new charging period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination. But if an employer engages in a series of separately actionable intentionally discriminatory acts, then a fresh violation takes place when each act is committed. Ledbetter makes no claim that intentionally discriminatory conduct occurred during the charging period or that discriminatory decisions occurring before that period were not communicated to her. She argues simply that Goodyear’s nondiscriminatory conduct during the charging period gave present effect to discriminatory conduct outside of that period. But current effects alone cannot breathe life into prior, uncharged discrimination.
...
Bazemore’s rule is that an employer violates Title VII and triggers a new EEOC charging period whenever the employer issues paychecks using a discriminatory pay structure. It is not, as Ledbetter contends, a “paycheck accrual rule” under which each paycheck, even if not accompanied by discriminatory intent, triggers a new EEOC charging period during which the complainant may properly challenge any prior discriminatory conduct that impacted that paycheck’s amount, no matter how long ago the discrimination occurred."


I'll defer to you legal expertise, but it seems quite clear to me that the court merely denies the paycheck accrul rule, whereby any current pay that in whatever amount reflects discrimination occurring long ago trigger a new filing period.

From the law in question:
For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, ... when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

The effect of which seems to be that any current benefits (pensions?) which reflect past discrimination in any way renew the fillig period, effectively removing the 180 day limit.
Again, that's how it reads to me.

First, while I think the result of the Supreme Court decision is bad policy, the law really was narrowly tailored so this talk of the Supreme Court decision being the most conservative thing in the recent past (as if that was necessarily a bad thing to boot) is ridiculous. The law really did set up a situation where the normal discovery rule didn’t apply.

Second, while the policy endpoint is bad, Ginsburg’s proposed approach is ridiculous. If you want to treat every passover promotion as a separate decision, fine, but individual paychecks shouldn’t be individual suits. Of course Ginsburg only made up that novel approach to get around the fairly clear restrictions of the law.

Third there are reasons why limitations on time exist, availability of witnesses and evidence being the most important one. And 6 months to bring a suit is short but not ridiculously short (many jurisdictions have suits that have to be brought within one year for all sorts of other matters).

There is a perfectly normal legal procedure to deal with the fact that people might not find out about discrimination until more than 6 months after it happens—it is called the discovery rule. Essentially it operates such that statutes of limitations don’t start running until you find out about the violation. So if you are discriminated against 5 years ago, you have 6 months to file the suit from when you find about that discrimination. There might also be a hard limit of something like 10 years (or whatever judgment the legislature comes to) based on witness availability factors.

Which brings me to the actual bill.
Can someone find a link to a synopsis of the actual bill. (I hate that we can have a hundred news stories on a bill that all talk about what it is supposed to address, but none of which show how the bill intends to address it).
If it addresses the issue from a discovery rule point of view, I’m confident in saying that Republicans are wrong to stop the bill. If it addresses it in some other way, I’m not so sure.

I think those focusing on the political question have it right. This needs legislative fixing. When congress puts in such a short statute of limitations, extending it like Ledbetter wanted to do raises a serious question. And a court changing it with respect to Ledbetter potentially impacts a lot of plaintiffs with far less compelling circumstances.

But a few factual issues make me wonder how strong Ledbetter's case really was. Consider fn 10:

FN10. We have previously declined to address whether Title VII suits are amenable to a discovery rule. National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 114, n. 7, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Because Ledbetter does not argue that such a rule would change the outcome in her case, we have no occasion to address this issue.

So Ledbetter didn't argue the discovery rule? To me, that presumptively means she knew or should have known about the discrimination way back when and didn't do anything about it. But that is not what the press is saying. Am I missing something here?

She also dropped her argument that she should have been given a raise (the circuit court turned her down on that one). That argument would also have gotten her inside the 180 day limitation period. I wonder why.

From a policy standpoint (not legal), I think disparate pay is kind of like hostile work environment and generally not like a termination or failure to promote. It is often not a discrete act that clearly puts the employee on notice. I don't mind giving employees a bit of a break if the numbers are not so patently obvious based on a few paychecks or if the company covers it up. Some form of discovery rule is certainly appropriate with an outside date longer than 180 days.

But opening it up at this time would be a huge problem. What Markus said.

Jesurgislac--


"That's gender-based because only a woman can give birth and breastfeed: but the other parent (male or female) should also be able to provide support for their child and for the birth mother, without it counting against their sick leave, their pay, their promotion prospects, or indeed their annual vacation time."

OK, that's persuasive.
Look! Someone changing a mind! On the internet! That never happens!

"If you don't change the cultural attitude that says what women do is of less value than what men do, then as more women become software engineers, writing code will be regarded as less valuable work."

I think you are mistaking causes here, and attributing a difference in pay to a gender imbalance when . From a market perspective (rather than a human one), a software engineer's job IS more valuable. Unfortunately, there are some prejudices that come in when you have people who are all highly trained, but with differing skill sets, if one group is paid more than the others (In game design we see this dynamic between software, art and level design).


"I was advocating that people who are doing the hard and necessary work of parenting should not be required to get by on less money than the people who are not doing this hard and necessary work."

This is an interesting position. My perspective tends to be that if someone who chooses not to have children opts instead to devote that additional time and effort into their career (rather than a more enriching personal life, which is also a valid choice), then they ought to be able to reap the rewards thereof.

Bersides, I though you used a nail gun to submit those forms in triplicate.

No, we still use a stapler for that.

From a market perspective (rather than a human one), a software engineer's job IS more valuable.

Nonsense. Try marketing your software without documentation or help, and see how far it goes.

When you discover that (a) your own customer support department is ready to kill you (b) the testing department is ready to kill you (c) no one wants to buy the software, try telling the software engineers they need to write the documentation as they code.

When you realize that everyone in your company now wants to kill you, because a grouchy software engineer is a pain in the ass all round, try hiring someone on the cheap to write up the documentation - someone who doesn't have any technical background or any experience as a technical writer.

This does something for marketing the product, since it now has what you might formally call "documentation", but the customer support and the testers still want to kill you.

Give in? Hire a technical writer with a background in software engineering, experienced in constructing helpful and detailed and clear documentation and helpfiles. Their work, it turns out, is exactly as essential as a software engineers; requires the same degree of expertise and skill; merits the same rewards for experience...

but won't get them.

Seb: I was going to link to the bill, but I only had one of those annoying Thomas decaying query links. However, clicking See full bill text on this page should get you there.

The relevant chunk amends the sec. of the US Code I linked to in the original post as follows:

"Section 706(e) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(e)) is amended by adding at the end the following:

`(3)(A) For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

`(B) In addition to any relief authorized by section 1977a of the Revised Statutes (42 U.S.C. 1981a), liability may accrue and an aggrieved person may obtain relief as provided in subsection (g)(1), including recovery of back pay for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.'."

Anthony: My perspective tends to be that if someone who chooses not to have children opts instead to devote that additional time and effort into their career (rather than a more enriching personal life, which is also a valid choice), then they ought to be able to reap the rewards thereof.

Those "rewards" include getting to be supported by other people's children. Which is something all of us can look forward to in the end, whether we have children or not, but the people who do have children are doing their share of the work in ensuring that there is a future generation to support us. Us childfree people are just planning to show up and reap the rewards of the work that the parents put in. I appreciate that, which is why I have no problem with parents getting time to do that essential work, without losing money by doing it.

"including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice."

The legislature can make this choice, but I think it is a really poor one and it certainly represents an enormous change in how these things would be dealt with. I don't see any reason why they wouldn't just use the tried and true discovery rule. If the purpose of the bill is to 'fix' the Ledbetter decision, I think the Republicans were right to oppose this bill. It can be fixed in the same way as hundreds of other torts deal with the problem of finding stuff out late. Creating a new cause of action with every paycheck strikes me as extreme overkill. If Democrats want to talk about why such a dramatically different approach is needed, I suppose we can have that debate, but it sounds to me like they are trying to horn in an enormous change as if it were just a minor tweak. (Now I'm open to being convinced that there is something I'm not considering that would require such a departure, but first we have to talk about the fact that it is different from how most lawsuits operate. So far as I can tell, Democratic Congressmen aren't doing that.)

Maybe someone has asked this already, but wouldn't a more effective solution to this problem be to make it illegal to require salaries be confidential? Make salaries a matter of open record, and discrimination will be a bit more obvious.

It's a little hard for me to get all the facts clear here, but as far as I can tell, the basis of the suit was that her pay was less than it should have been because of acts that occured years ago. Why that doesn't make each paycheck a discriminatory act is incomprehensible to me.

"A new violation does not occur, and a new charging period does not commence,upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination."

This is ludicrous. An act that "entails adverse effects resulting from past discrimination" is patently a discriminatory act, especially when it is the easiest thing in the world to correct. Just give Ledbetter a raise to fix it. Failure to do so is discriminatory on the face of it. She is being underpaid because of her sex. How that can be deemed non-discriminatory escapes me.

a grouchy software engineer is a pain in the ass all round

Aha, you're onto our secret! Although, this assumes that there are software engineers that are not grouchy....

There is a perfectly normal legal procedure to deal with the fact that people might not find out about discrimination until more than 6 months after it happens—it is called the discovery rule.

Seb, thanks for this, it does put a different light on the issue.

If Ledbetter's claim was denied because it was made too late after the hiring decision, does anyone know why the discovery principle was not applied?

I'd be interested in knowing.

Also -- I guess I'd like make a couple of responses to bc and markus' comments upthread, from a layman's point of view.

The clear intent of the law here is that there should be no illegal discrimination in rates of pay for comparable jobs. 'Illegal discrimination' in this context includes discrimination on the basis of gender.

It may well be that, when all is said and done, a correct parsing of the case will result in Ledbetter receiving no remedy.

THAT WOULD CLEARLY BE CONTRARY TO THE INTENT OF THE LAW, AND WOULD SUCK.

Apologies for the bolds, I just don't know how else to point out the glaringly obvious.

When the process of how the law is administered creates results that are clearly contrary to the law's intent, the law appears to be an ass.

Just so you know.

When how the law is administered creates results that are clearly contrary to the law's intent, and those results give advantage to folks who are powerful, privileged, or otherwise in a position of advantage, the law appears to be not an ass, but a whore.

Just so you know.

Finally, if someone was screwed out of fair compensation not only for the duration of their employment, but on into their retirement, and through no fault of their own was only able to discover it at that point, it's completely unclear to me why that should disqualify them from being able to take legal action to recover what was due them.

If companies don't want to be exposed to that kind of thing, THEY CAN AVOID IT BY NOT DISCRIMINATING AGAINST THEIR EMPLOYEES.

Dig?

Sorry again for the bolds, same purpose as above.

Thanks -

An act that "entails adverse effects resulting from past discrimination" is patently a discriminatory act

Huh?

Here's the hypothetical: 50 years ago, the school system discriminated against Joe, so he never learned to read. This spring, I refused to hire him because I needed someone who could read.

How is that a discriminatory act?

Apparently one of the arguments against the amendment is that Ledbetter could have sued under the Equal Pay Act and had a longer statute of limitations (this is mentioned in the majority opinion). Her attorney sued under Title VII. Maybe this whole thing could have been avoided (darn attorneys!)

And I agree with sebastian. Amend with a reasonable discovery rule. Maybe even make it retro a bit. Just don't reopen 20 year old cases willy nilly like the act appears to do. A discovery rule would protect those truly kept in the dark. But as Ledbetter's attorneys conceded, the result wouldn't have been different for her with a discovery rule (read: she should have known and stuck her head in the sand). At least I think so.

read: she should have known and stuck her head in the sand

Can you explain what you mean here by "should have known"?

If you mean she was aware of the discrimination at an early point, and failed to take action then, I don't disagree with you.

If you mean she did not know she was being discriminated against at an early point, but did not, and is somehow responsible for not knowing, I'd say that was beyond unfair.

Like, way beyond.

Can you explain which of these you had in mind? Or, if neither, what you did, in fact, have in mind?

Thanks -

Here's the hypothetical: 50 years ago, the school system discriminated against Joe, so he never learned to read. This spring, I refused to hire him because I needed someone who could read.

How is that a discriminatory act?

Sam,

It would be a discriminatory act by you if you were responsible for Joe's inability to read.

In the Ledbetter case she was underpaid by Goodyear as a result of past acts of discrimination by Goodyear.

When you discover that (a) your own customer support department is ready to kill you (b) the testing department is ready to kill you (c) no one wants to buy the software, try telling the software engineers they need to write the documentation as they code.

Actually, from what I understand, many jobs do require software engineers to document their code as they go along. [The job I just got, for example.] Whether or not they're as good as a dedicated technical writer is a separate question -- and one to which the answer is clearly 'no', btw -- but the cross-functionality does exist in that direction, whereas it generally doesn't in the other.

Further, I think you're misunderstanding the nature of the discrimination at work here. It has, so far as I know, nothing to do with gender; instead, it's the techie bias against things perceived to be "non-techie". Ask a software engineer about the pay of managers, or marketing, or executives in general -- predominantly male professions, the lot of them* -- and you'll get the same, dismissive attitude. Technical writers receive a double dose, as they're responsible for a) non-techie stuff b) on the code that the engineers just wrote, so there's an even more personal stake in it.

That said, I categorically agree that we need, as a society, to produce (and retain) more techie women. That's an entirely different kind of systemic bias, though.

Also, the Ledbetter decision sucks, and Congress sucks even harder. Boo.

* I think the gender balance is shifting in sales, as companies cotton on to the fact that people will be more likely to buy their wares if a beautiful woman is selling them, but the behind-the-scenes folks still seem to be predominantly male.

the court merely denies the paycheck accrul rule, whereby any current pay that in whatever amount reflects discrimination occurring long ago trigger a new filing period.

yes, that's what we have been talking about. Why shouldn't it be a new discriminatory act? Look at it this way: if the problem really existed, no way did HR never notice. So, imagine you're an HR manager, you're reviewing payroll, and you notice that all the women who were hired by your predecessor 10 years ago are paid 20% less than men w/ same seniority at same jobs. Do you (a) ignore the issue and hope they never notice, or (b) say, well, I didn't create this problem, but I'm going to end it now? If your answer is (a), aren't you complicit? According to the Supreme Court, no. Why?

The effect of which seems to be that any current benefits (pensions?) which reflect past discrimination in any way renew the fillig period, effectively removing the 180 day limit.

Sorta. I do see the problem with proving that the original decision was not discriminatory, 20 years after the fact. Perhaps the answer is, don't make the new law retroactive: have it apply to pay decisions made after the law's effective date, not to old cases. Haven't heard the Rs propose any fix here.

OTOH, if Hilzoy is right that the Court's decision came as a big surprise and overturned widespread Circuit precedent (and my hazy recollection from law school is that she is correct about that), then businesses knew they were responsible for keeping track of the evidence, and very few people would be harmed by the law.

Jes: Try marketing your software without documentation or help, and see how far it goes.

You might be surprised (or not) at how often this actually happens. The documentation often trails the product by months. And I’ve never heard of losing a sale because a customer wants to see (non existent) documentation as part of their due diligence. I’m sure it happens – but I’ve never encountered it.

Their work, it turns out, is exactly as essential as a software engineers; requires the same degree of expertise and skill; merits the same rewards for experience...

Now I’ve already said how much I value technical writers, but I’m not sure I agree with this. For one thing, people can learn to write quite well without 4-6 years of college. I’ve worked places that don’t require the degree for good technical writers, but always do even for a junior programming position.

Shorter Technical Writers v. Programmers:

Technical Writers need to speak Human

Programmers need to speak Human AND Computer.

There is a clear skill difference. If a TW has the skills to be a programmer but is a writer, then that is their choice. Unless you want to argue that women are prevented from acquiring jobs as programmers due to prejudices. Which is an entirely different argument from technical writers should be paid the same as programmers.

If you mean she was aware of the discrimination at an early point, and failed to take action then, I don't disagree with you.

That's mostly what I meant. I mean, you can't be "willfully blind" to the facts and then come back later and say "I really didn't KNOW, but I kind of suspected, in fact . . ." You get the drift.

does anyone know why the discovery principle was not applied?

See above, fn. 10 of the decision. Ledbetter didn't argue discovery rule because, according to her own attorney's, it wouldn't have made a difference.

Just so you know.

A few points:

a) from what I can tell, the failure to argue discovery rule is glaring. I infer (but am not positive) that she knew or should have known she had a cause of action and did nothing. That's not what the news reports say, but otherwise she should have argued discovery rule.

b)and through no fault of their own was only able to discover it at that point, it's completely unclear to me why that should disqualify them from being able to take legal action to recover what was due them.

No problem from me. That's the purpose of the discovery rule. If the company takes efforts to hide what it does, the discovery rule will toll the statute. It would encourage companies to make salaries transparent because then the statue would start right then.

Part of the problem now is where the rubber meets the road (i.e. lawsuits) is problems of proof. We have statutes of limitations on horrible crimes, frex, because proving them is so hard down the road. It is unfair to the employer at some point to make them go back to defend against discrimination cases 20-30 years down the road. The people responsible for the allegedly discriminatory decision may not be there anymore. Memory is not a great thing under the best of circumstances.

I would think a lot of pay discrimination cases are based on performance reviews vis-a -vis other employees. Terminations or failure to promote cases are not going to be problems as the SCOTUS opinion notes. Those prompt immediate action. It's the smaller discrepancies that crop up over time. 20 or 30 years down the road it is going to be very hard to get testimony on why a particular performance review came out the way it did in a lot of cases. Sure, there will be glaring cases with smoking guns. But a lot are going to be "I got a B on my eval and Bob got an A."

Really, the question of how far back to go is a policy question. Reasonable minds can differ. I don't have a problem with a discovery rule coupled with an outside statute of limitations.

And I think wage discrimination is really, really wrong. Just to be clear.

"So, imagine you're an HR manager, you're reviewing payroll, and you notice that all the women who were hired by your predecessor 10 years ago are paid 20% less than men w/ same seniority at same jobs. Do you (a) ignore the issue and hope they never notice, or (b) say, well, I didn't create this problem, but I'm going to end it now? If your answer is (a), aren't you complicit? According to the Supreme Court, no. Why?"

No that isn't correct. Managerial decision making can form a discriminatory act. So if you reviewed the payroll history and decided to do nothing with what you discovered, that could be a separate discriminatory decision. But merely issuing the paycheck every two weeks is not a separate discriminatory decision. Part of this has to do with the fact that the act focuses on decisions not mere existence of disparity (which might exist for all sorts of reasons: skill level (heh I mistyped that ‘shill level), tenure, hard work, etc.).

The decision to characterize each paycheck as a separate decision was a legal ploy to get around the restrictions of a noticeably narrow law. I’m not a big fan of sneaky workarounds. Just change the law.

Now that we’re at the change the law stage, there isn’t any reason for sneaky workarounds, just use the tried and true discovery rule that we use for everything else. If it is good enough for toxic torts where the person is likely to die, I can’t see why you need an even more permissive rule for discrimination cases.

The documentation often trails the product by months.

Documentation? What is this word you're using?

Shinobi: Shorter Technical Writers v. Programmers

You have that completely wrong. But it's no longer my job to convince you of that, for which relief, much thanks.

"Programmers need to speak Human...."

Cite?

Gary,

I should make that "rudimentary human"

Those "rewards" include getting to be supported by other people's children. Which is something all of us can look forward to in the end, whether we have children or not, but the people who do have children are doing their share of the work in ensuring that there is a future generation to support us. Us childfree people are just planning to show up and reap the rewards of the work that the parents put in. I appreciate that, which is why I have no problem with parents getting time to do that essential work, without losing money by doing it.

You seem to see childrearing as a virtuous activity, worthy of subsidy. In an increasingly overcrowded world, I tend to see it as a negative one that will apply further stress to the planet. Were we in a condition where we faced a population implosion, it might be a behavior worth encouraging. As it is, raising children is a choice-- one many people willingly make because of the numerous intangible rewards it is said to bring. That's great for them, but it's a lifestyle choice like anything else. You gain some things and you lose others.

Will I need someone to care for me in my dotage? Possibly. But I'm not going to just "show up and reap the rewards", I'll also probably have to pay them-- and any state services I receive, I will in turn have subsidized for a preceding generation.

But merely issuing the paycheck every two weeks is not a separate discriminatory decision.

I'd say the discriminatory act is the periodic performance and wage review. Actually cutting a check is usually done by very low-level employees with no authority to effect wages. Sometimes said low-level employee is just there to make sure everyone gets paid; the actual check amounts are computed automatically.

And of course it's the discovery of the discriminatory act that should be the event of interest, as I believe was stated upthread.

You seem to see childrearing as a virtuous activity, worthy of subsidy.

I see childrearing as a necessary activity.

Our problem with this world is not that the Western countries are overpopulated, but that the population of Western countries that exists is consuming a far-larger-than-equitable share of the world's resources.

Meantime, we have children. The children need to be brought up. The notion that it's okay to penalize people financially for devoting time and effort to bringing up children is, well, pure gender discrimination: while some men do actively co-parent their children, parenting is a gendered activity: mostly women do it, and mostly women suffer for it.

I mean, you can't be "willfully blind" to the facts and then come back later and say "I really didn't KNOW, but I kind of suspected, in fact . . ." You get the drift.

Not to beat this into the ground, but if she suspected that she might be being treated unfairly at an early point, how would she (or anyone else in a similar situation) go about finding out?

Should she ask everyone she works with what they make?

Should she go to HR and ask for the salaries of everyone with her job description and similar experience?

I have no idea, as a practical matter, how you go about getting that information.

If the solution is to take some legal action to pry the data out of the company, you're requiring employees to open a damned big can of worms just to find out if they *might* be being treated unfairly.

It seems to me that, under your understanding of the circumstances, the burden is all on the employee to discover the discrimination. The risk involved in doing so is likewise all on their shoulders.

There's no reasonable, non-adversarial way for the employee to find out the facts.

In a nutshell, that seems extremely unfair.

Thanks -

OCSteve, I have no idea why you think the Dems' support for a bill it sounds like you yourself support is just a ploy, is insincere politicking, etc.

Programmers need to speak Computer.

Technical writers need to speak Programmer and Layperson.

how would she (or anyone else in a similar situation) go about finding out?

Should she ask everyone she works with what they make?

It's only unfair if there is discrimination. Putting discrimination to one side, there is absolutely no reason why employers should have to disclose what they pay employees to other employees. I think the market functions better if they do, but at the same time, companies have an interest in saving money. It's a private contract.

So if there is a concern about discrimination, ideally you would have a way to find out that info without suing. I agree. I think your suggestions regarding an informal process is what I would do. First talk to employees and then talk to the employer. If that doesn't work (and in her case where she had an anonymous note) I would file with the EEOC. The EEOC will investigate and either pursue it themselves or issue a right to sue letter.

It does have the disadvantage of having to file and making yourself a "trouble employee." But there is an avenue. There may be other remedies under the Equal Pay Act as well.

What would you suggest? Perhaps the Equal Pay Act could require employers to provide certain date with employee names removed in order to spot potential problems. But that's just one more form for everyone to fill out, including those that aren't doing anything wrong.

That's why commission is such a wonderful thing. I was a sales manager in my former life at a car dealership. Other than managers giving out "spoons," it was really up to the salespeople what they earned and everyone knew what the others made. And women tended to do really well at selling.

"Meantime, we have children. The children need to be brought up. The notion that it's okay to penalize people financially for devoting time and effort to bringing up children is, well, pure gender discrimination: while some men do actively co-parent their children, parenting is a gendered activity: mostly women do it, and mostly women suffer for it."

I don't want to penalize parents, I just don't want to privilege them. If somebody is attending soccer games and school plays and graduations, they're being compensated-- they have treasured memories and a loving (and hopefully devoted) child. Employees should be rewarded for the work they do, not what they choose to do outside of work.

russell, if the company makes it hard to find out, that could be concealment, which I think would toll the statute of limitations. The worker's responsibility would be to ask early on. Maybe just to ask "am I allowed to know what my co-workers are getting"? Maybe not even that, if the company has a policy statement that it keeps salaries confidential.

bc, I think you overstated when you said But as Ledbetter's attorneys conceded, the result wouldn't have been different for her with a discovery rule

Footnote 10 said Ledbetter didn't ARGUE the discovery rule. That could mean she failed to develop her proof properly at the trial court because the trial court ruled before trial that the claim was not time-barred so that evidence of late discovery would have been irrelevant, it could mean that the lawyer framed the cert petition narrowly, which is the best way to get the Supreme Court's attention - it could even mean simply that nobody specifically raised the point at oral argument, given how prone many appellate courts are to eliding facts hidden in the record that don't match whatever broad theory they feel like propounding that day. It does not seem to mean that Ledbetter did not discover the facts late.

But you may well be correct that the discovery rule is all the solution needed, now that everybody knows the rules of the game. The next plaintiff's lawyers will know to make the discovery-tolling argument at the trial court.

I don't want to penalize parents, I just don't want to privilege them.

Your reduction of parental care to "soccer games and school plays and graduations" doesn't really cover the point that:

1. Under a year, a baby needs some one person to be the full-time carer. Ideally, some two people. US employment law does not permit either parent to be that person without severe financial penalties.

2. Between a year old and school age, a child needs someone to be there for them through the day. Daycare/part-time work can work for this, but US employment law will penalize a parent who decides to provide parental care for their children.

3. Even once a child is in school, there will be days when the child is ill and needs to stay home. A sick child can't be taken to daycare. US employment law permits employers to penalize parents who take time off because their child is ill.

Working parents who want to care for their children are penalized in so many ways that to hear someone talking about the "privileges" that parents enjoy - do you yourself work for a company that gives parents paid leave to "attend soccer games and school plays and graduations"? Really? - suggests strongly that you have not actually thought through the subject in any serious way.

...liability may accrue ...(g)(1), including recovery of back pay for up to two years preceding the filing of the charge...

Am I missing something or is this exactly the same thing as a cap limiting compensatory damages to a two year window from the point the discriminatory compensation is discovered? There's no problem if each new paycheck constitutes a new infraction because the compensatories are capped at no more than two years wages. Paystubs are around and so are co-workers and bosses, so you don't run into any stale claims. This seems perfectly reasonable to me. It gives a worker incentive to do due diligence on others pay, but you only have to do so every two years.

Can someone explain to me why the republicans opposed it? There's no way a corp can get hit with a twenty year old claim.

What would you suggest?

I'd suggest giving people six months (or some other reasonable amount of time) from the time at which they discover they've been discriminated against to take an action.

I'd suggest that folks who don't proactively dig up the payroll records at their place of employment not be denied the opportunity to seek redress if they later discover that they've been discriminated against.

I don't know what you do for a living, but in most places of business asking your co-workers what they are paid so you can all compare notes is more or less out of the question, for obvious reasons. Ditto asking for that information from HR. As you point out, it's a private contract, and it's not anyone else's business. My reason for mentioning them as examples was to point out the absurdity of claiming that Ledbetter 'should have known' she was being discriminated against.

THERE WAS NO WAY FOR HER TO KNOW.

There IS NO non-adversarial way for employees to find out what all of their peers are paid. That's why putting the onus on the employee to discover that at a 'sufficiently early' point is absurd. In practice, it means the protections nominally provided by the law might as well not exist.

Look, Ledbetter was unlawfully paid a lower wage than her peers. THE MALEFACTOR IN THIS SITUATION IS HER EMPLOYER. Not her. Them.

If you are concerned that corporations will be sued for discriminating against their employees, there is a very, very simple thing they can do to prevent that.

THEY CAN NOT DISCRIMINATE AGAINST THEIR EMPLOYEES.

Easy peasy, right? What could be simpler?

Look I'm sorry for the bolds, but it's either that or my head explodes.

Thanks -

OCSteve said (far above) that he knows no people that consider it proper to pay women less for the same work because they are women.
I want to state here that I DO indeed know such people (though I rather wish I would not). They are typically the same people that dislike working women in principle and often also believe (and state) that female academics have failed their natural role.

Reading conservatives defend this decision is amazing. Such bitterness about lawsuits against discrimination, and such glee that someone found a procedural trick to kill meritorious lawsuits regarding discrimination.

The old rule is a well established legal doctrine applied in many contexts. The new rule makes no sense, and effectively kills all claims for discrimination unless you happen to know you were victimized in the first 180 days of employment and rush to a lawyer.

Yes, if you have been discriminating against me for years by paying less based on sex, each time you pay me less based on sex is a new act of discrimination. The act of discrimination is not the hiring - its unequal pay based on improper discrimination. Each payment is a new violation. To win the case, you have to show that the current payments are discriminatory based on current bad conduct. The fact that the same bad conduct also occurred in the past cannot give me a victory.

It is as if I hit you, but you chose not to sue and the deadline to sue passes. Allegedly that denies you the right to sue later when I hit you again.

No, even under the old rule, you could not sue for old damages -- the statute of limitations cuts of the right to money for older violations, but the recent violations remain actionable.

This has been the well settled law in this area since the law was enacted, and other similar areas for over a century. It is a common doctrine, for example, in real property law concerning nuisance in which the violations are ongoing every day they are continued, or violations of covenants on real property. The passage of time cuts off a right to damages for old violations, but not for more recent ones within the statute of limitations. This is basic law.

Moreover, the federal law in question says nothing about the proper method for applying statute of limitations, which is common with federal statutes. This is strictly a policy choice to be made by judges, which happens all the time (unfortunately) with federal law, which tends to be plagued with vagueness.

The Supreme Court conservatives literally picked a rule out of their ass that has the practical effect of gutting discrimination law. They knew that they were doing that when they did it, and they did it with glee.

And conservatives seem to think that is just fine. Just so long as the trick guts the right to bring claims for redress for discrimination, a right that they prefer to see die. And if the effective right to sue for discrimination in employment is gutted by trickery, so what. It's a bad law anyway to allow people to sue for redress for discrimination.

Amazing and revealing.

Amazing and revealing.

And yet the very same people who defend this decision will wail that my definition of conservatives as people who want to see the poor get poorer and the rich get richer is unfair and conservatives aren't like that.

Except, you know: defending this decision says that's exactly what they are like. This is the essence of conservativism: to protect the rich at the expense of the poor.

I mean:

Let's suppose Lilly Ledbetter had been stealing from Goodyear. Suppose that, month by month, by some method or other, she had been defrauding her employer, so that after 19 years she had walked away with $250 million. (Goodyear's net profit in 2005 was $228 million: it seems more appropriate to think a sum that would hurt Goodyear as much as the loss of $250K hurt Ledbetter.)

And that Goodyear found out about it, and tried to sue her.

Does anyone suppose that the conservatives who have defended the Ledbetter decision would be defending it if it were reversed - if the argument was that as Goodyear only just found out that Ledbetter had been defrauding them for 19 years, they couldn't be allowed to bring suit for anything that happened more than six months ago?

Supposing that by some legal legerdemain - after all, with $250M, Ledbetter can afford to hire the best lawyers! - Ledbetter gets away with this; and Congress attempts to pass a bill to at least say that this can't happen again - that when an employer discovers that an employee was defrauding the company, the employer is still entitled to sue the employee and attempt to recover all the money, not just that taken in the last six months.

Anyone think that conservatives would argue that such a law was in principle bad, no matter the individual justice of Goodyear's case?

Dmbeaster, I think you are confusing the 'old' rule and the 'new' rule.

The old rule wouldn't have allowed the suit. Some judges and administrators tried to get around that with the 'every paycheck is a separate act' concept. The Supreme Court returned to the old rule. It didn't gut the law. The law was very limited.

But if we want to change the law, I would propose we use the discovery rule that we use for many other torts--you have a statute of limitations that runs from the time of the discovery of the wrongdoing rather than merely the time of the wrongdoing.

Do you have links on that, Sebastian? My understanding has been that the 'each paycheck is a separate act' rule has been how the law has been enforced from the beginning; the Supreme Court's argument isn't that they're returning to how the law used to be understood, but to the 'correct' reading of a statute that has always been misunderstood, and has never before been understood as the SC now understands it.

I'll go look for some references on that, though -- I've been wrong before and may be now.

I'm not having much luck; the paycheck accrual rule was current EEOC policy, but I'm not finding either any clear statement that the paycheck accrual rule was new as of some date, before which the EEOC and courts uniformly applied the initial decision rule, or that the paycheck accrual rule went back to 1964.

From the lack of clear answers I've found looking around, though, I'm pretty sure that this, "The Supreme Court returned to the old rule", is at least overstated -- that there wasn't a uniform 'old rule' to return to. Might have been a period when the proper interpretation of the statute in this context was unsettled, but unless you've got something to rely on here, I don't believe there was a period where the rule stated in Ledbetter was the consistent or even dominant interpretation of the law.

Sebastian:

I do not want to be mean about it, but you do not know what you are talking about.

This is not a situation in which the statute of limitations is based on discovery. It is that class of statute of limitation cases regarding "continuing violations."

The traditional rule for discriminatory pay cases was that each time I underpaid you based on discrimination was a new violation. And that is not a novel rule, but one commonly used in many types of cases in determining whether or not a claim can be brought for continuing conduct involving multiple violations over a range of time.

As in many areas of federal law, the statutes do not describe how the limitations period is to be applied, and it requires judicial interpretation to fashion the rule. Prior to Ledbetter, the rule was that a claim could be based on recent discriminatory pay based on the continuing violation doctrine. The Supreme Court in Ledbetter created a new rule that you had to bring suit within 180 days of the initial violation. There was no prior precedent to support that decision, and there were decades of decisions in lower courts to the contrary.

The Ledbetter case is not about a "discovery" rule being used to allow an old claim. Yes, she did discover a pattern of discrimination that had been going on for years, but even under the doctrine before Ledbetter, she had to premise her claim on the recent unequal pay violations.

If Goodyear had remedied the unequal pay created during a prior period of discrimination, and then Ledbetter belatedly brought a claim for old unequal pay, then even under the traditional rule her claim was time barred. But at the time she brought her claim, she was still being substantially underpaid relative to her male co-workers.

What it means is that the strong federal policy against discrimination in the workplace has been dramatically undermined. If you can get away with pay discrimination for the initial 180 days because you keep everyone's pay secret, then you de facto can commit employment discrimination without any fear of a consequence. That is the implication of Ledbetter, and was exactly what the Supreme Court wanted to see happen.

The fact that conservatives disingenuously re-cast this decision as just cutting off old stale claims is enraging -- it's about conservatives gutting discrimination law since they do not like companies being sued for it. Why not just admit that we should not allow lawsuits for wage discrimination, and its OK to pay blacks, women or other suspect classifications less based on their race or gender. That is what the Ledbetter case is doing, and doing it dishonestly by pretending that it is just a humdrum statute of limitations decision that the court is forced to apply based on the statutes.

Why not just admit that we should not allow lawsuits for wage discrimination, and its OK to pay blacks, women or other suspect classifications less based on their race or gender.

Because in a country which is at least nominally a democracy, conservative politicians and pundits cannot afford to be honest about conservative policies.

Conservatives may feel that it is OK to pay black people or women less based on their race or gender, and may make or defend court decisions that ensure that employers will be able to do so, but cannot possibly afford to say outright "We intend to ensure that wage discrimination continues" because saying so, outright, will lose them the support of decent people who think of themselves as conservatives without supporting actual conservative policies: such as OCSteve. Or indeed Sebastian.

Someone formerly on my friends-list at my former journal-site (I'm now at Wordpress, and don't have a friends-list...) recently posted, friends-locked, a list of reasons why she intended to vote for McCain in November: basic principles that, she asserted, were so important to her that she had to vote for the candidate who would most nearly represent her on all of them.

McCain was the wrong candidate for her on every single one. (With the possible exception of Iraq, where she was adhering to a "we broke it, we fix it" model which I guess meant "stay in Iraq".) The reason why she is no longer on my friends-list is not because we disagreed significantly on any point of principle, but because (as I told her) it made me too sad in a way I could not explain that she intended to vote for a candidate who would not support a single one of the principles she said were important to her.

I do think it takes a special level of self-delusion to argue that because GLBT equality and pro-choice values are important to you you've got to vote Republican (Honest: those were on the list!), but I have to admit, it appears there is an almost endless capacity to achieve that special level by people who want to think of themselves as conservatives and don't want to think too hard about actual conservative policies.

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