How the lack of fair pay affects us all

Are you paid fairly?

A 2007 U.S. Supreme Court case that you may have heard of, Ledbetter v. Goodyear, says that a person claiming pay discrimination must file their EEOC discrimination claim within 180 days after receiving their first discriminatory paycheck. The case has been widely criticized – see, for example: The American Prospect and Pundit Mom.

The issue of fair pay arose in the current presidential campaign – see Huffington Post and Newsday. Criticism of McCain’s position can be found at MOMocrats and Jezebel. A bill was introduced to remedy the problem the U.S. Supreme Court created: HR 2831. The bill’s lack of progress was reported on in the Washington Post. And there was a speech by Lily Ledbetter herself at the Democratic National Convention.

Now there is an interesting installment from the academic world (also blogged about at Women’s Studies Liblog). A recent article in the Harvard Civil Rights-Civil Liberties Law Review by Tristin K. Green entitled, “Insular Individualism: Employment Discrimination Law After Ledbetter v. Goodyear,” explores the idea that the Ledbetter case is part of “the belief that discrimination can be reduced to the action of an individual decisionmaker (or group of decisionmakers) isolated from the work environment and the employer.”

Prof. Green’s argument is that the Ledbetter case is leading a trend toward stiffer evidentiary requirements for employees in employment discrimination cases. There will be less evidence that employees are allowed to use to show discrimination, and vicarious liability for employers will be whittled away.

Part of the larger point of the article is that the attempted Congressional remedy of HR 2831 will not be enough to protect against further erosion of employee rights because its scope is too narrow. Litigants should emphasize the role of the larger organization in setting the stage for discrimination to counter the argument that the discrimination is only the responsibility of one or more errant individuals who are somehow not acting as part of the workplace. Prof. Green’s argument goes beyond the scope of equal pay, reaching all areas of employment discrimination law. It is worth exploring.