She was an ordinary middle-class mom who, despite fierce criticism, succeeded in a male-dominated profession. She challenged the local establishment and became a national figure, earning herself a spot as a featured speaker at her party’s recent Convention. But she wasn’t the governor of Alaska.
She was a woman named Lilly Ledbetter, a former middle manager at a Goodyear plant in Alabama, who appeared at the Democratic Convention to give a human face to the slogan “Equal pay for equal work.”
Ledbetter’s unlikely journey to center stage began in the late 1990s when she received an anonymous note revealing the salaries of her fellow managers, all of whom were men. Although Ledbetter did the same job as her colleagues, and had more seniority than some of them, they were all being paid considerably more than she was.
Ledbetter sued under the Civil Rights Act, and proved that her lower pay was the result of discrimination early in her career, the effects of which had never been remedied. But victory was short-lived; the verdict was overturned on appeal, and then the Supreme Court ruled against her.
The Court did not deny that Ledbetter had been discriminated against. However, according to the Civil Rights Act, Ledbetter’s lawsuit had to be filed within a hundred and eighty days, and the Court ruled that the clock started ticking with the first act of discrimination, almost two decades before Ledbetter found out what was going on.
Ledbetter was out of luck. But the Court did leave open a possibility for others like her: if Congress wanted a more realistic time frame for lawsuits, all it had to do was change the law. And so, acting with surprising dispatch, that’s precisely what Congress tried to do. Last year, the House passed a bill, named after Ledbetter, that essentially did away with the statute of limitations on pay discrimination, and the Senate was set to do the same until Republicans filibustered it to death.
Protecting workers from discrimination is a fairly uncontroversial idea. So opponents of the bill, who include John McCain, insisted that, while they’re in favor of equal pay, the new law would unleash a flood of frivolous litigation. That’s a familiar excuse, and in this case a threadbare one. There would likely be more lawsuits if the bill was passed — the point, after all, was to allow more people to sue — but there was no reason to expect a deluge, since, before the Court’s decision, it’s probable that most potential litigants had assumed a less stringent interpretation of the time limit anyway. And giving workers more time to sue makes sense, because pay discrimination usually takes a while to become evident, and, insofar as raises and bonuses are based on initial salaries, its effects never go away.
Other opponents of the bill depict it as a stalking horse for the idea of “comparable worth” (also known as “pay equity”), which would require the government to shrink the current gender wage gap by insuring that workers in female-dominated professions receive pay similar to that of workers in male-dominated professions, as long as they’re doing work of “similar value.”
To have the government, rather than the market, set wages and decide what kinds of work are comparable to others is indeed a poor idea. But the Lilly Ledbetter bill has nothing to do with comparable worth. It’s about closing a loophole that has enabled employers to get away with active discrimination. Comparable worth would require the government to enforce equal pay for different jobs. But Ledbetter just wanted what she was entitled to — equal pay for the same job.
Does the Ledbetter bill matter? It’s true that active discrimination is rarer these days than it once was. But, contrary to what much economic work would predict, racial and sex discrimination is still a powerful force in the job market.
Decades ago, the economist Gary Becker showed that “taste-based” discrimination (pure prejudice) could not survive in a truly competitive talent market, because unprejudiced companies would outperform prejudiced ones by hiring smart women and minorities. Yet the introduction of blind auditions at major symphony orchestras, starting in the seventies, has increased by fifty per cent the likelihood of female performers’ advancing — a clear sign that, for decades, orchestras had made bad talent decisions because of their prejudice without being punished.
More striking, recent work by Kerwin Charles and Jonathan Guryan, of the University of Chicago, shows that, under certain reasonable conditions, market competition will not necessarily eradicate discrimination. That may be why, they suggest, the gap between black and white wages is widest in the most prejudiced parts of the U.S. — precisely what you’d expect if businessmen could discriminate and get away with it.
Of course, just because the market can’t prevent discrimination doesn’t mean the government should. And so there is a principled argument against the Ledbetter bill: namely, that Lilly Ledbetter was an adult; that if she didn’t think she was being paid fairly she was free to ask for more money or to leave; and that government interference with the idea of what constitutes fair pay is likely to cause more problems than it’s worth. Unlike the current opposition to the bill, this is an honest position to take.
But it’s also, for good reasons, a profoundly unpopular one, which is why few Republicans have voiced it. Instead, opponents of the bill have acted like McCain, proclaiming their support for fair pay while doing their best to insure that workers have a hard time getting it. Maybe it’s time for them to give Americans some straight talk and unveil a new slogan: “Unequal pay for equal work.” It may not be catchy, but at least it’s honest.