Real Progress on Fair Pay
February 9, 2009, 2:32 pm
Filed under: Ian

The Lilly Ledbetter Fair Pay Act is a great law, but all it did was restore civil rights law to the way it was before Sam Alito got his hands on it.  Over at the American Prospect, Emily Douglas writes about a companion bill to the Ledbetter Act which will provide much needed new tools for women who are paid less than their male colleagues for the exact same work:

The Paycheck Fairness Act closes loopholes in the Equal Pay Act of 1963. Under the 1963 law, employers can claim that a woman is paid less for a reason “other than sex.” Employers can argue, for example, that men have better salary-negotiation skills or received a higher salary at a previous job. Paycheck Fairness would require an employer to show discriminatory pay is truly related to job performance. (The law would also develop salary-negotiation training programs for women.) It lifts the cap on punitive and compensatory damages for sex-based discrimination, a cap that doesn’t exist for race- or ethnicity-based discrimination. And the law would better facilitate workers bringing class-action lawsuits based on wage discrimination by automatically considering workers part of a class-action unless they opt out.

I’m glad to see Congress taking proactive action on this issue.  Merely rolling back bad Supreme Court decisions is not enough.

Of course, as I recently wrote over at ACS, sometimes, the Supreme Court is content to ignore laws rolling back its bad decisions as well:

While congressional pushback against the conservative judiciary has been rare in the last forty years, it has not been unheard of.  In 1989, the Supreme Court held in Lorance v. AT&T Technologies that women who were laid off because of a discriminatory seniority system waited too long to challenge that system, even though they took action almost immediately after the lay-offs.  Two years later, Congress responded with the Civil Rights Act of 1991, which overruled Lorance and restored accountability to companies that discriminate against their employees.

If this story sounds familiar, that’s because it is.  The issue in Lorance is almost identical to the issue presented in Ledbetter.  Yet the Supreme Court not only ignored the fact that Lorance is no longer good law when it ruled against Lilly Ledbetter, it expressly relied on Lorance in tossing Ledbetter out of court!

Perhaps two times will be enough to convince the justices that Congress really means it when it says that women should not be subject to employment discrimination, but there is no guarantee that the Court will set aside its deregulatory agenda no matter how clearly Congress expresses its intent.

All of which is to say that, in order to bring about progressive change, Congress must fight a two front war.  The American people need new laws advancing progressive goals, and they need Congress to maintain constant vigilance so long as the Supreme Court remains hostile to those goals.


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