Equal Pay Bill

  Thanks Emily  for pointing out the wrongheadedness of McCain’s opposition to the Equal Pay Bill.

This very mild piece of legislation would have undone an incredibly bad Supreme Court decision in Ledbetter   which held that the filing period to bring a Title VII action for discriminatory compensation begins running when the employer first discriminates, even if the employer continues to in fact discriminate for years afterward.   The Court in Ledbetter wrongly focused on an discriminatory state of mind—which, contrary to Justice Alito’s assertion in that case is not the sine qua non of unlawful discrimination but rather simply evidence of it—rather than the actual discrimination: differential treatment because of sex.  

As I wrote in Slate last year,  it’s pretty obvious that the actual discrimination is ongoing as long the employee is in fact receiving lower pay because of her sex, even if the subsequent low paychecks are simply the carryover result of the initial discriminatory decision.   It doesn’t (or shouldn’t) matter if the person setting later salaries based on the original discriminatory salary isn’t motivated by discriminatory intent—the employer is discriminating as long as it is in fact paying the woman less because of her sex.   The point of Title VII isn’t just to punish bad actors with evil intentions—it’s also to prevent discriminatory actions and the injuries that result from them.

And, contra McCain, far from encouraging frivolous litigation, the Equal Pay Act might even discourage it.    As Emily points out, in many cases it take a while for the employee to find out that she’s being paid less than other people doing the same work (employees rarely discuss their salaries with each other and of course management has every incentive not to publicize pay disparities)—but Ledbetter says that’s tough—if you don’t find out after until after the quite short filing period ends (either 180 or 300 days), your action is time barred.   This actually encourages anyone with a potential claim to hurry up and file—waiting until you’re sure you’ve been discriminated against will, under Ledbetter, often mean your case is time barred.  

I have to say it’s hard for me to believe that anyone who is really committed to equal pay would oppose this mild and sensible piece of legislation– it doesn’t open us up to lawsuits for “all kinds of problems”– only for the problem of discriminatory pay.  Opposition suggests that McCain is most concerned with reducing the absolute number of cases filed—whether or not they have merit.