Lilly Ledbetter Fair Pay Act — Why Are Conservatives Against Equal Pay?

Conservative columnist Mona Charen weighed in on the Romney campaign’s disastrous failure to connect with women last week and chastised the Romney campaign over its failure to understand its own position on the Lilly Ledbetter Fair Pay Act. That seems fairly reasonable…oh, wait, Charen chastised the Romney campaign for agreeing to support the Lilly Ledbetter Fair Pay Act. There’s the ill-informed rambling I expect from Mona Charen. But what is this opposition really about? The law itself has almost no downside, but it does provide a springboard for conservatives to beat two of their favorite drums — trial lawyers and women who buck “traditional” family models.

The Lilly Ledbetter Fair Pay Act was the first piece of legislation signed by President Obama in 2009. The law was a direct response to a Supreme Court case, unsurprisingly named Lilly Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007). The Supreme Court had thrown out a wage discrimination suit, holding that the 180-day statute of limitations in the Equal Pay Act of 1963 begins to run on the date of the first discriminatory paycheck. Simply put, the Supreme Court said that a company planning to violate the Equal Pay Act just needs to keep it up for 7 months and then they can keep discriminating forever. The Lilly Ledbetter Act amended the Equal Pay Act to say that the 180-day statute resets with every new discriminatory paycheck.

Charen begins her opposition to the Lilly Ledbetter Fair Pay Act by bemoaning the fact that liberals, the media, and people with “basic reading comprehension” have equated the law with equal pay for women. While Charen is correct that “equal pay for women” has been mandated since the Equal Pay Act of 1963, a law that can be ignored is not really a law. While it would be wonderful if the federal government would investigate and prosecute all violations of the Equal Pay Act, in reality this function has been privatized (to save taxpayer money), forcing individuals to bring their own suits to assert their rights. If the country is committed to this system of “private redress,” the law must be written to minimize technical hurdles for private citizens, such as forcing individual workers to be savvy enough to mount a legal challenge in 6 months.

Equal rights laws are just handouts to trial lawyers. Look, this lawyer made his whole career out of "equal rights" laws.

Unsurprisingly, Charen invokes a long-standing conservative trope by saying that the Lilly Ledbetter Act “isn’t really for women at all, but for another key Democratic constituency — trial lawyers.” This is like saying groceries aren’t about food but a handout to the plastic bag lobby. But it’s also a disingenuous attack for a free market conservative. All we hear from conservatives is how the private market is more efficient and then, in one of the most successful instances of a private market, they complain.

When you hear the GOP bash “trial lawyers” during this election, and you will, ask yourself, “what is the alternative?” Charen is either advocating a massive expansion of federal government investigation and enforcement — certainly not her private hope — or trying to gut the Equal Pay Act of any value. A right without redress is not a right. It’s an aspirational statement.

Look out, buddy! Mona Charen's coming!

The Geneva Conventions ban treating strawmen as savagely as Charen does. Charen complains that expanding the statute of limitations “is an invitation to litigation and requires extensive and onerous record-keeping by employers to guard against lawsuits.” No, not really. It means keeping the same records businesses already keep…and not burning them after 6 months. I can lend the company a jump drive if they need the extra storage space. Charen says, “when years have passed, memories have faded, and principals have died, it becomes nearly impossible to ferret out the truth.” It’s just 6 months after the most recent discriminatory check, chill out.

In argument, as in football, there’s defense and offense. To generate offense, Charen blames the law for putting women out of work.

In practice, the law may actually damage women’s opportunities, as employers weigh whether to hire a woman or a man and consider the costs of a possible lawsuit by a disgruntled female hire.

Now remember, this logic applies under any system where equal pay for women is the law. In fact, before this Supreme Court decision, this exact burden still applied to businesses. The Lilly Ledbetter Act does not alter the horrible burden on businesses to “not actively screw over their female employees.”

And now we come to the core of the conservative opposition to equal pay for women. Charen explains that women are paid less because they want to be paid less. She says that marriage and children are the real culprits in the systematic wage inequality for women. This argument is circulating the conservative journals and talk shows, because it reinforces the fundamental conservative vision that everything would be fine if women would just leave the private workplace. Even if you granted every single one of these claims, the Lilly Ledbetter Act is still a good policy. It allows individual women to bring private lawsuits based on their unequal pay. If a woman is underpaid because she wants to work part-time…she can’t bring a lawsuit.

The Lilly Ledbetter Act is not controversial, which is why Mitt Romney has decided to support the law. The purpose of the conservative attack on the law is merely a cover for attacking lawyers and shifting blame on women for choosing to work in jobs outside the home.

2 comments for “Lilly Ledbetter Fair Pay Act — Why Are Conservatives Against Equal Pay?

  1. Scott
    May 4, 2012 at 11:29 am

    “No, not really. It means keeping the same records businesses already keep…and not burning them after 6 months. I can lend the company a jump drive if they need the extra storage space. Charen says, “when years have passed, memories have faded, and principals have died, it becomes nearly impossible to ferret out the truth.” It’s just 6 months after the most recent discriminatory check, chill out.”

    Actually, no, not really. The Act states the clock is from the last “compensation”, which includes pensions, and potentially retirement accounts such as 401(k)’s since they were based on pay that was based on a discriminatory act. I appreciate your vitriol towards the woman in question (whom I’ve never heard of), but she does make a valid point. There is the potential for a tremendous burden to businesses to maintain in a readable format records for an indefinite period of time. That’s just bad legislation. Your flash drive is going to come up small.

    • May 4, 2012 at 3:59 pm

      Pensions are explicitly excluded from the calculation change in the Act. They are subject to the same law as before. Your point about 401(k) accounts is an interesting idea that I hadn’t considered especially if there’s a matching program of some sort that could be applied in a discriminatory manner — I haven’t researched that angle but it’s worth thinking about.

      The law allows the practice to be challenged starting the clock with each act BUT the law is careful to cap the new damages it allows at 2 years back pay, meaning the practical effect on a business would require defending its pay practices for two years — if maintaining old records is more costly than the risk of two years back pay the company can make a rational risk management decision to stop maintaining files that it finds burdensome to keep.

      And I just don’t think this burden is an extreme change, despite the rhetoric. I’ve litigated cases with files dating back over 30 years and it’s a pain to review (a huge pain to review) but companies do have personnel records saved in deep storage the normal course of business already.

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