by Fatima Goss Graves, Senior Counsel at the National Women’s Law Center
April
is now here — the Cherry Blossoms are blooming in D.C., warmer weather
has returned, and many are at least thinking about spring cleaning.
April is also a time for commemorating Equal Pay Day.
Equal Pay Day is observed in April to mark the point in each year at
which an average woman’s wages finally catch up to the wages earned the
year before by the average man. And this year women, who make 77 cents
for every dollar a man makes (63 cents for African American women and
52 cents for Latinas), reach that point on April 22nd.
I’ve
already decided what I want for Equal Pay Day. True, typically gifts
are not exchanged — indeed, if there were a gift it would be finally
closing the wage gap so that Equal Pay Day would no longer be a
necessary commemoration. But this year workers are still reeling from
the Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co. from last term and so a shorter term gift is in order.
Just a bit of background on the decision — for many years, the
supermajority of courts (indeed, 9 of the 10 courts to consider the
issue) and the EEOC applied a commonsense rule to pay discrimination
claims: each paycheck renews the discrimination and the statute of
limitations. Then came Ledbetter. Lilly Ledbetter spent close
to 20 years at Goodyear receiving pay that was far less than the
amounts earned by male co-workers performing the same job. But she did
not have firm evidence of discrimination until very close to the time
she retired, when she received an anonymous note informing her of the
pay discrimination. Nonetheless, last May the Supreme Court ruled 5-4
that employees have only 180 days after the first discriminatory
paycheck to file a formal complaint, even when the discrimination
persists to the present time and even when employers continue to gain a
windfall from it.
The Ledbetter decision
turned the longstanding circuit court and EEOC rule on its head. Not
only is it unworkable (pay information is often confidential and,
unlike other forms of discrimination, paychecks are not announced, or
treated by employees, as adverse employment actions), but it also
provides incentives for employers to hide discriminatory pay decisions
for the first six months, hoping to then discriminate free of charge.
Last
summer the House of Representatives responded swiftly by passing
legislation to restore the law to the way it has always been. The
Senate introduced similar legislation in the Fair Pay Restoration Act .
The Act makes clear that compensation discrimination claims accrue
whenever a discriminatory compensation decision or practice is adopted,
when a person becomes subject to the decision or practice, or when a
person is affected by the decision or practice, including whenever he or she receives a discriminatory paycheck . This legislation would ensure that workers are protected from workplace discrimination as Congress intended.
The National Women’s Law Center
has more information on how you can help commemorate Equal Pay Day or
participate in the Fair Pay Campaign. Lawyers and law students can also
get involved here.