So this is last week’s news, but it’s important. As was widely reported, the Senate killed amendments to the Equal Pay Act. I’m only getting to it now because I was away last week.
Here’s some background on the Lebetter case, the horrible U.S. Supreme Court ruling that made this an issue. The gist is that women who get paid less than men must file their discrimination claims within 180 days of the first pay-setting act, or their rights to pursue claims are lost.
Interesting study in Senate conduct. For example, Senator McCain opposed the bill because it would, “open us to lawsuits.” Sorry, but I have to call you on that one, Senator. The law requires equal pay for equal work. Lawsuits happen only when employers fail to comply with anti-discrimination laws. Or to simplify: pay equally, and you get no lawsuit. So what you really meant was, “This change would mean that all employers who discriminate in their pay practices would have to face the consequences of illegal discrimination.”
Kudos to Oregon Senator Gordon Smith who correctly saw this as a non-partisan issue and broke with his party to vote in favor of the change. I periodically disagree with Senator Smith, but here I think he did the right thing. I would be remiss in failing to recognize his courage in doing so. I suppose some might suggest that Senator Smith voted in favor of the changes only because he faces a tough re-election in a blue state. I don’t particularly care how he got there. He did the right thing here.
My guess is that the opponents, which is to say most of the rest of the Senate Republicans, are playing with fire. The outcome is that women who are paid less than men for the same work have a very short time window for filing claims. Either the Republicans are encouraging people to file claims early on, or they are assuming that women don’t care. Bad message either way.
For years, there has been a fiction in the law of the workplace that almost always works to the disadvantage of employees. It’s called the at-will employment doctrine. According to this doctrine, an employee or an employer can terminate the work relationship at any time for any reason, as long as it’s not an illegal reason. This at-will employment doctrine applies in almost every private work relationship, with the exception of those covered by written contracts or collective bargaining agreements.
It works to the employee’s disadvantage because the employer generally has all of the power. It’s okay to say that a worker can quit his or her job at anytime. But rights and theories don’t earn paychecks and don’t pay the bills.
Under the at-will employment doctrine, each day is a new day. If I’m the employer, I can change your rate of pay tomorrow, and you accept that change if you continue to work. So I could declare tomorrow that from this day forward you will no longer make $15 per hour; instead, I’m going to pay you only $12. Under the at-will doctrine, you can–to quote the old country song–tell me to, “Take this job and shove it.”
That’s the law.
So what happened this week at the U.S. Supreme Court? In order to protect employers, a 5-4 majority ruled that discrimination claims for unequal pay must be filed within 180 days of the date on which pay is first set, which is weird because under the at-will doctrine, every day is a new one.
The majority got there through a convoluted process.
First the majority opinion ignored the facts. As Justice Ginsburg pointed out in her dissent, Ms. Ledbetter’s pay was in fact comparable to her male co-workers when she was hired. Her pay declined over time relative to her male co-workers.
But the other thing is that the majority completely ignored the at-will employment rule. According to Justice Alito and the majority, pay setting starts at the beginning of relationship, so that’s what triggers the claim. But the employer can raise or lower pay at-will. So how could that be consistent with the at-will rule where every day is a new day?
The answer is that it’s not consistent at all.
I think what Justice Alito meant to say was that the case was decided on the modern version of the Golden Rule. You remember that one: the person with the gold makes the rule.
Very sad outcome, as it would be nice to see the Court act consistently. But that would score one for the employees, and that’s not likely to happen with this court.
David F. Sugerman