Fair Play or Foul? (Lilly Ledbetter Act)

[Pangloss]

(NOTE: This is a bump of an old thread, and this post is the original post from April of last year. Please see my reply below.)

 

This week's action on the Lilly Ledbetter Fair Pay Act was interesting to follow. Lilly Ledbetter was a manager at Goodyear Tire for 20 years. In her lawsuit she alleged that she only found out after she retired that she had been paid significantly less than male managers -- even those with less seniority -- for her entire tenure at the company. A jury agreed and awarded her a quarter-mil in back pay and 3 mil in damages.

 

The case went to the Supreme Court last year, and the justices overturned the case, on the grounds that it violated the 180 day statute of limitations from her first paycheck in which she was discriminated against. Obviously this rule doesn't recognize the fact that it may be almost impossible to find out that kind of information (Goodyear specifically forbade managers from discussing their salaries with one another!), and the ruling was close, 5-4.

 

So congress has been working on a bill that essentially resets the 180-day statute of limitations with each paycheck. To a certain extent that makes sense -- it could be viewed that each paycheck is a discriminatory act.

 

But Republican Senators filibustered and even that was more or less moot because President Bush planned to veto it anyway. Their position was that it creates a "field day" atmosphere, in which there is essentially no statute of limitations at all. (Which doesn't seem true to me -- it just renews the 180 day statute each time they get paid.)

 

I disagree with that position so I may not be representing it very well. The Wall Street Journal has an editorial on the subject from the other day at this address:

 

http://online.wsj.com/article/SB120916465140946149.html?mod=googlenews_wsj

 

Maybe someone can parse that out and figure out if they have a legitimate point or not.

 

Here is a Slate article discussing the other point of view:

 

http://www.slate.com/id/2189983/

 

I think Slate is right, and Pres. Bush and Republican Senators are wrong. What do you all think?

Edited January 29, 2009 by Pangloss

[Pangloss]

An old bump (sorry), and we apparently never even discussed this issue, but I thought it interesting that this became the first piece of legislation signed by Barack Obama this morning.

 

http://www.washingtonpost.com/wp-dyn/content/article/2009/01/29/AR2009012901887.html

[jackson33]

Suppose the 'bump' was because of this mornings signing of an 'Equal Pay' Bill in her name, by Obama...

 

I'll call it foul play, since IMO any intrusion into what any business can or can't pay is neither Constitutional or the Federal Governments business. Then practically under this law of any minority pay law, it is one sided. That is if an older white male is paid half of what any lady is paid, he has no recourse.

[Mokele]

That is if an older white male is paid half of what any lady is paid, he has no recourse.

 

Flat-out wrong. The law prohibits gender discrimination and race discrimination, regardless of race or gender.

 

Honestly, I cannot think of a single reason why this bill would be opposed. Are people actually *against* fair pay? And the 180 day limit is a joke, effectively only there to obstruct equality. Think about it, how can you know what your salary is compared to others without violating most workplace rules? And even if you *did* find out, they could wave it aside as a "trial period" and promise a raise later, and by the time they default on that promise, the 180 days are up.

 

It all boils down to something simple: you cannot talk about favoring equality, but then stack the deck so those discriminated against can't fight back.

[Mr Skeptic]

Ambiguous. While I think people should be paid equally for equal value provided, this bill will put a large burden of proof on the company and be great for lawyers. Suppose you have a small company where, due entirely to statistical fluctuations, it turns out that the middle aged white males provide significantly more value to the company and accordingly get paid more. Then the other folks find out and assume that the company is being unfair (or that they can convince a jury that the company is being unfair). Then the company loses money for no fault of their own. In addition, this kind of law could result in discrimination in favor of crappy workers, due simply to the company being afraid of paying them less because they might get sued.

 

So long as there are people who discriminate less, the ones who do discriminate more will simply be putting themselves at a disadvantage -- those discriminated against could work for people who don't discriminate. However, the discrimination would still harm people even if the company they work for does not discriminate -- it would increase the supply of these workers and so decrease the price anyone needs to pay them. It would take a long time for the free market to eliminate discrimination, and understandably no one would want to wait that long.

[jackson33]

Flat-out wrong. The law prohibits gender discrimination and race discrimination, regardless of race or gender.

 

Honestly, I cannot think of a single reason why this bill would be opposed. Are people actually *against* fair pay? And the 180 day limit is a joke, effectively only there to obstruct equality. Think about it, how can you know what your salary is compared to others without violating most workplace rules? And even if you *did* find out, they could wave it aside as a "trial period" and promise a raise later, and by the time they default on that promise, the 180 days are up.

 

It all boils down to something simple: you cannot talk about favoring equality, but then stack the deck so those discriminated against can't fight back.

 

Your probably correct on how the law is written and should be true, males could sue for equal pay...Heard a couple attorneys discussing on FOX, basically saying the male could not....A quick check shows none have, at least at Google...

 

As said, I don't feel its the Federal Governments position to dictate wages, minimum wages to what can be paid to CEO/CFO's. Frankly, I don't think State Government should get involved, but would have the authority, IMO.

 

As for an individual Company, the corner grocery to say a small manufacturing company, should be allowed wage control of any employee and the 'gender/race/age' should not be a factor. Same pay for equal pay, then the judgment of the management/owner or whatever. That's my simply

opinion in this age of 'every body is equal'. Thats nonsense to begin with, bring on such reaction, as last week when a girls basketball team was beat by another 100 to -0-, and the winning coach fired. There is no less difference in the value of an employee than those little girls.

 

The end result and frankly has been increasing lately, is the hiring of some folks in the first place and I would bet 'Contract Hiring' will become the norm, along with an increase in whats called 'piece work'. Of course, another result will be tens of thousand of law suits, in an already over stressed legal system and no telling how many hard feelings among fellow employee's.

[iNow]

If the best argument against it is that it's going to give a few lawyers a few more cases, then I'm fine with it. Seriously, this equal pay thing should have been sorted out during the equal rights movement. Stupid white males with lots of dough should be happy they've gotten away with things for as long as they have.

 

How could any sane person oppose this, indeed.

 

 

And Jackson, you cannot share a Fox news piece and expect to be taken seriously. The fact that you watch it all seriously calls into question your credibility.

[Mr Skeptic]

You want to know what I think really smells suspicious? The policy of not disclosing your wages. What do you think the purpose of that policy is? I think it allows companies to pay less to people who lack the people skills to realize they are being screwed -- be they black, women, homosexual, or just white males with poor people skills.

[Sisyphus]

You want to know what I think really smells suspicious? The policy of not disclosing your wages. What do you think the purpose of that policy is? I think it allows companies to pay less to people who lack the people skills to realize they are being screwed -- be they black, women, homosexual, or just white males with poor people skills.

 

I agree that is pretty much the main reason - not "to screw people," per se, but to put the employer at an unfair negotiating advantage by having far more information than the employee. And if that weren't the case there probably wouldn't be these issues - the market can probably take care of it itself, but only if the "consumers" have access to the relevant information.

[Mokele]

Suppose you have a small company where, due entirely to statistical fluctuations, it turns out that the middle aged white males provide significantly more value to the company and accordingly get paid more. Then the other folks find out and assume that the company is being unfair (or that they can convince a jury that the company is being unfair). Then the company loses money for no fault of their own.

 

I doubt that would survive court - the main principle is that people should be paid equally for doing the same job just as well. In *any* company today, regardless of size, women will be paid less simply because the jobs that are considered most socially acceptable for women (and filled mostly by women) are lower-paid jobs. That's something that has to be handled by changing the culture itself, not by the courts or by laws. What the laws can address is that if you have 10 welders, one of which is a female who is of intermediate skill and intermediate experience, she should be in the middle of the pay range, not at the bottom.

 

So long as there are people who discriminate less, the ones who do discriminate more will simply be putting themselves at a disadvantage

 

As Sisyphus points out, this assumes access to information. It's possible you may be able to hear things 'through the grapevine', but that's highly prone to sampling bias, exaggeration, etc, and with salary records confidential, there's no real way to check.

 

You want to know what I think really smells suspicious? The policy of not disclosing your wages. What do you think the purpose of that policy is? I think it allows companies to pay less to people who lack the people skills to realize they are being screwed -- be they black, women, homosexual, or just white males with poor people skills.

 

On top of that, it strikes me as very condescending. The company is like your mom saying "Now I know you two will fight over who gets more candy, so I won't let either of you know how much is in each of your bags." Treat employees like grown-ups, and if they can't handle where they are on the pay scale and start fussing, they probably aren't much of an asset anyway.

 

Mokele

[jackson33]

If the best argument against it is that it's going to give a few lawyers a few more cases, then I'm fine with it. Seriously, this equal pay thing should have been sorted out during the equal rights movement. Stupid white males with lots of dough should be happy they've gotten away with things for as long as they have.

 

How could any sane person oppose this, indeed.

 

And Jackson, you cannot share a Fox news piece and expect to be taken seriously. The fact that you watch it all seriously calls into question your credibility.

 

A lot of the momentum for 'Womens Rights' road on the 1971 'Equal Right, women' Constitutional Amendment. "Equality of rights by law shall not be denied or abridged by the US or any State, on account of sex." Very controversial in meaning and never ratified into the Constitution. Many States that did ratify, later withdrew ratification and the Amendment expired. The idea many jobs held by men could not be done by women (NFL Football/Battlefield combat, etc) and interpretation followed into the work field.

 

I happen to agree, but from both angles. A male bank telling, grocery clerk or any number of jobs is better handled by ladies (worth more) and males are more adapted to others, construction workers, roofers, Commercial Airline pilots or many positions the general public perceives safety/security (since in all cases their are exceptions).

 

Question; If you have 100k dollars and start any business where public exposure is a factor, would you not consider this in the price of that labor?

Hooter's today is fighting a suit by one many who wants a waiters job, now held by only women at all locations. Then should he expect equal tips or be compensated by the employer? Equal pay for equal work is a lot more complicated than its made out to be, IMO.

 

As for my creditability and Fox News, under your opinion neither of us will ever have any, and I would bet you think, your value is also worth more...point made!!!

[iNow]

Yeah, like I said... no good arguments against.

[Pangloss]

I'm actually not a big fan of the highly generalized argument that women don't make as much as men. It just makes too many assumptions.

 

But this legislation really has nothing to do with that argument. It addresses a specific loophole that was utilized for the express purpose of ripping off women to aid the bottom line of companies. That's not to be tolerated, and the law makes sense. That's really all there is to it.

 

If along the way we make a statement reminding people that this society will not tolerate inequality and unfairness, more power to the administration and Lilly Ledbetter for that.

 

My two bits, anyway.

[Mr Skeptic]

So congress has been working on a bill that essentially resets the 180-day statute of limitations with each paycheck.

 

Ah, I missed that part. This is totally sensible -- why should people be allowed to discriminate against someone now just because they didn't complain when the discrimination started half a year ago?

[Pangloss]

Exactly, although I would just add that it wasn't that she didn't complain earlier, it was that she didn't know that she was being discriminated against at that earlier point in time. Once she found out, the statue of limitations had already passed from her first paycheck, so she was being discriminated against on an ongoing basis and had no recourse in court. The new law closes that loophole.

 

It's also worth noting that the law does not stop companies from hiding the salaries of employees (nor should it). The game is, as they say, still afoot. This just balanced the playing field a little.

[tvp45]

In criminal law, there is an accepted exception to limitations when an offense continues. For example, if you engage in a conspiracy that plays out over, say, a ten year period before you finally get everything in place and move the loot to an offshore bank, the limitation will not start on the first day you began the conspiracy, but rather on the day it was complete.

 

It seems perfectly reasonable to apply the same idea to civil law. Each paycheck is not separate from others in continued employment; the harm is not changed, it seems, whether a person is paid daily, weekly, or yearly.

[iNow]

Watch the 8 minute ceremony below.

 

UtKAKlurRAY

[Baby Astronaut]

Does anyone know if there's an example from any nation where a business discloses all its employees wages?

 

It'd be good to start with a comparison of businesses that have opposing policies, and the similarities or resulting differences with issues of fair pay.

[ParanoiA]

I dispute the notion of fair pay, though. Is it fair that Wal-Mart only makes 10 cents per bottle of shampoo, while the local grocery store makes 20 cents per bottle? That isn't fair either. If Wal-mart had known, they might have raised their prices. I wonder if Wal-mart and the local grocer get their shampoo wholesale from the same company, negotiating a separate contract for each. Isn't that company being unfair in charging Wal-Mart one price and the local grocer a different one?

 

How is selling my labor service any different? Why does there have to be any fairness? I'm competing with the rest of you for work. The price I agree to for labor is part of the dynamics of my competitive method - just like any business competes with price.

 

So she found that men were being paid more, in general. Sure, that's a trend you can see when you analyze salaries. I wonder, also, how many women have benefited from getting a job over a male due to this inherent difference in labor charges.

 

As far as the OP is concerned, I do agree with this restructuring on the statue of limitations, that seems quite fair to me. But, I'm not sold on this notion of fairness in business. I think this is the problem with not seeing ourselves as doing business when we get a job or go to work. We forget that we negotiated a business deal - we signed a contract - for our labor service. I have every right to market myself and compete with the rest of you.

[iNow]

That argument has already been tackled, ParanoiA. Your argument only applies if the workers have full access to the information. Without that information, they are not able to make the informed decision on which your case rests.

[Mokele]

How is selling my labor service any different? Why does there have to be any fairness?

 

So it's OK with you if a business puts up a sign saying "Now Hiring - No Blacks"? Or paying a worker less because they're Catholic?

 

It's not just one business - women being paid less is an almost omnipresent phenomenon. Since it's impossible to know whether you're being treated fairly (since salaries are secret), there's no way to avoid it *or* to use it to your advantage in hiring, and the result is that women pay a penalty that, over their work life, can amount to hundreds of thousands of dollars, just because they don't have a penis.

 

 

The right to equality under the law and equal treatment supercedes ALL other aspects of government, including the market. If you cannot expect fair treatment, that undermines the entire basis of even participating in civilization to begin with.

 

Mokele

[ParanoiA]

So it's OK with you if a business puts up a sign saying "Now Hiring - No Blacks"? Or paying a worker less because they're Catholic?

 

Yes. Just as Hooters or your local strip club essentially implies that same sign - "Now Hiring - No men". But then, I'm an advocate for objective governing in order to avoid institutionalized bigotry, or slavery. The cost for that is that society can be ugly - but they have that right, and we have the right not to reward them for it. I think that's better.

 

It's not just one business - women being paid less is an almost omnipresent phenomenon. Since it's impossible to know whether you're being treated fairly (since salaries are secret), there's no way to avoid it *or* to use it to your advantage in hiring, and the result is that women pay a penalty that, over their work life, can amount to hundreds of thousands of dollars, just because they don't have a penis.

 

But it's not because "they don't have a penis". Is that the only difference you think there is between men and women? I give women more credit than that.

 

I think this it's because of social stereotypes associated with men and women. Men are perceived as being generally more dependable and stable (probably due to women generally assuming the primary care giver role). Why shouldn't an employer be allowed to consider those dynamics when negotiating a contract for business?

 

Wal-Mart gets to consider far more trivial and silly things than that when considering a wholesaler. There's not a law in the books keeping them from discriminating against doing business with another supplier just because they don't like the shape of their windows. How is that fair?

 

The right to equality under the law and equal treatment supercedes ALL other aspects of government, including the market. If you cannot expect fair treatment, that undermines the entire basis of even participating in civilization to begin with.

 

So we don't live in a civilization? None of us are getting "fair" treatment. What is fair about denying me the right to weigh risk how I choose? Even if it's stupid. I think your definition of fairness is unfair. I don't think it's fair to tell me what factors I'm allowed to weigh in order to determine who gets the job I'm offering, or how much I'm willing to pay for it, for whatever goofy reason I choose.

 

I think a fair, level playing field is one that does not hide my attributes. One that lets me use every dynamic of myself to make money. Women can use the fact their women to market themselves, just as it can serve against them. That's fair, to me, since I don't really buy the whole notion of fairness to begin with.

 

Now, please do me the courtesy of answering my questions. I answered yours.

[Mokele]

Yes. Just as Hooters or your local strip club essentially implies that same sign - "Now Hiring - No men".

 

False analogy - those jobs that depend upon the gender or other innate characters of a person aren't being forced to hire people who cannot do the job. No laws require that. No laws require me to hire a blind guy as a crocodile handler. But if the person's blindness does not interfere with his/her job (such as telemarketing), then I should not be able to discriminate.

 

But it's not because "they don't have a penis". Is that the only difference you think there is between men and women? I give women more credit than that.

 

Apparently not, since you're so willing to trot out sexist sterotypes.

 

IMHO, 'giving women credit' does not mean 'assuming all women are the same'.

 

I think this it's because of social stereotypes associated with men and women. Men are perceived as being generally more dependable and stable (probably due to women generally assuming the primary care giver role). Why shouldn't an employer be allowed to consider those dynamics when negotiating a contract for business?

 

For the same reason an employer shouldn't be able to screen out black employees "because they're less intelligent".

 

Both positions are equally bigoted, and equally inaccurate. That a woman should be denied a job based not on her ACTUAL traits, but rather traits that are simply assumed by the sexist in charge of hiring is utterly reprehensible.

 

And you act like there's *choice*. There isn't. If you freed employers like you wish, there would be almost no chance of most women ever getting a good job, period. Sexism is so deeply ingrained in our culture that without someone forcing their hands, nothing will change.

 

Wal-Mart gets to consider far more trivial and silly things than that when considering a wholesaler. There's not a law in the books keeping them from discriminating against doing business with another supplier just because they don't like the shape of their windows. How is that fair?

 

Strawman/false analogy. These refer to traits that people CANNOT change (or should not be expected to, such as religion), not some trivial detail that can be altered at a moment's whim.

 

So we don't live in a civilization?

 

Not until these inequities are solved, no. We're making a good attempt, but we aren't there yet.

 

What is fair about denying me the right to weigh risk how I choose? Even if it's stupid. I think your definition of fairness is unfair. I don't think it's fair to tell me what factors I'm allowed to weigh in order to determine who gets the job I'm offering, or how much I'm willing to pay for it, for whatever goofy reason I choose.

 

Your right to discriminate is superceded by both the rights of an individual to a job and the broader rights of minority groups not to be persecuted for their differences.

 

Some things are more important than the free market, simple as that.

 

Mokele

[iNow]

But in a strip club or at Hooters, ParanoiA, a man could NOT do the same job. The issue here is that FOR THE SAME EXACT work, women were being paid less than men, for no reason other than gender.

 

A man CANNOT, by definition, be a stripper in an establishment specializing in female nudity or juggies. This isn't 100% accurate, but for purposes of this particular example, the women are better viewed as part of the product being sold by the business, a comodity desired by their customers, as opposed to just being "employees." They are not taking out the trash, or fixing the electrical, jobs which any gender could do, and for which pay should be equal if skills and output are equal. Further, the law also doesn't say that fat chicks or people with physical deformaties must be hired as strippers. Your argument on this one is too far away from reality to matter.

 

 

EDIT: Cross posted with Mokele.

[Mr Skeptic]

But in a strip club or at Hooters, ParanoiA, a man could NOT do the same job. The issue here is that FOR THE SAME EXACT work, women were being paid less than men, for no reason other than gender.

 

Sure he can. A guy can take off his clothes, dance, etc., just like a women. The exact same work. However the the customers would discriminate against them because they want to see nude chicks. In a sense the customers of the club are indirectly hiring the strippers, and they are discriminating against males.

 

A man CANNOT, by definition, be a stripper in an establishment specializing in female nudity or juggies. This isn't 100% accurate, but for purposes of this particular example, the women are better viewed as part of the product being sold by the business, a comodity desired by their customers, as opposed to just being "employees."

 

What if you view the club as being a middleman helping the customers to hire the strippers?

 

---

 

I'd rather consider the case of a gynecologist then strippers since it sidesteps the "product" issue. Gender discrimination is rife with gynecologists. Is it OK to discriminate against men simply because a woman might be more comfortable with a female gynecologist?