My fundamental problem with the Fair Pay Bill recently signed into law by the new President is this:
In forcing employers who are sued for pay discrimination to prove that a difference in pay was entirely job-related, it codifies a presumption of guilt instead of a presumption of innocence.
It is, though in a different arena, the same fundamental problem that existed at Guantanamo Bay: we will assume you are terrorists, and treat you as such (granted, in Guantanamo you were even less likely to get a chance to try to prove your innocence).
Discrimination is bad. Discrimination is hard to prove. And assuming that any difference in pay is due to intentional discrimination is offensive. Towards the end of my first full-time job, I was making $12.50 an hour in a position of significant responsibility. I admit to being a little miffed when I discovered that someone else who worked there was making $2.50 an hour more for less - from my perspective - work.
Was it discrimination? NO! I, simply, was not aggressive in asking for higher pay. But if the situation were reversed and the girl were to sue because she was making less money, the company would have to prove that one job was more valuable than the other, or they'd be held liable under this new law for discriminating.
I really don't like it when the government says "prove to me you're not discriminating, or you're going to be found guilty." The positive spin you will hear about the bill is "it makes it easier to win pay discrimination lawsuits." This is true, but it does that by legally abolishing the presumption of innocence, and that - to me - is wrong.
Edit: A belated note - this diatribe is based on a description of the bill that I read yesterday. I can't find anything today that describes the contents of the bill as anything more than a deadline-extension. That, in my book, is acceptable. I'm just noting that it's entirely possible that I'm completely off base here. It certainly wouldn't be the first time...
Thursday, January 29, 2009
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2 comments:
The Ledbetter Act doesn't make the changes you describe.....because you're describing the framework that has existed for decades in discrimination law, although you're not exactly getting it right.
Instead of the pay discrimination example let's start with something simple....a black man not getting a job or a promotion, and he suspects it's because of discrimination and sues.
The way it works is in three steps and then an over-arching rule.
Step 1: Plaintiff has to prove the basics - he's part of a protected class (here, a member of a certain race), he's qualified for the job, he didn't get it, a white guy got it instead.
Step 2: Burden shifts to the Defendant to put forward a non-discriminatory reason that Plaintiff didn't get the job. Now this is a burden of production, not persuasion. That means that the Defendant is NOT presumed guilty unless they can't articulate ANY non-discriminatory reason at all - which would be pretty bad, honestly. If the Defendant is able to articulate a non-discriminatory reason.....
Step 3: The burden shifts back to the Plaintiff, who has to prove that professed non-discriminatory reason is simply pretext.
Overarching the whole thing, as the Supreme Court articulated sometimes in....the 80s, I think.....is the fact that burden remains on the Plaintiff to prove discrimination by a preponderance of the evidence.
The Lily Ledbetter Fair Pay Act doesn't do a thing to change this basic framework. What it does, as you say, is deal with deadlines. Specifically, it says that if someone gets a paycheck that is lower BECAUSE of discrimination, then one can sue within 180 or 300 days (depending on the state....it's complicated) of receiving that discriminatory paycheck.
The Act was meant to overturn a decision which calculated the statute of limitations as beginning at the time a discriminatory pay DECISION was made. So, let's say, an employer decides to pay a woman less because she's a woman....and that's 5 years ago. Too bad for her. She's still getting paychecks that are lower now based on that discriminatory pay decision, but since she missed the statute of limitations counted from the discriminatory pay DECISION (as opposed to the paycheck) she's out of luck. She didn't find out about the discriminatory pay until last month? Too bad for her.
The Fair Pay Act was created to remedy that situation, and that's all.
Hope this clears things up.
From my discussions with Kenny, I was under the impression that you are NOT a lawyer. If you are and I've just been telling you a bunch of stuff you already know, forgive me.
Not a lawyer, and glad to see a framework for it.
I should know better than to blog based on what I hear on the radio as I'm half-asleep in the mornings.
That said, I automatically distrust anyone who cites women making 75(ish) cents on the dollar compared to men for similar work as evidence of discrimination. That comparison in no way shows any discrimination, because it fails to account for individual choices being made by people in the workforce. The real statistic is closer to 90 or 95 cents on the dollar, and even that's uncertain, as it's really difficult to disentangle all the factors than can affect pay beyond discrimination - especially when using aggregate statistics.
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