Jennifer Hagerman Discusses Pay Legislation with the Memphis Daily News
January 15, 2009Memphis Lawyer Weighs in on Pay Legislation
The Daily News
January 15, 2009
Two pieces of national legislation that deal with equal pay for equal work recently were passed by the U.S. House of Representatives and soon will be up for Senate consideration.
The Paycheck Fairness and the Lilly Ledbetter Fair Pay acts were introduced to the House last year in March and July, respectively, and were defeated by the Senate after House approval.
However, they have reappeared as the second and third pieces of legislation in the new 111th session of Congress, and now are facing reconsideration by the now-Democratic majority Senate. President-elect Barack Obama also has voiced his support for the proposed acts.
“Pay disparity, unlike other forms of discrimination, is more difficult to uncover,” said Jennifer Hagerman, the president of the local Association of Women Attorneys and a member of the Burch, Porter & Johnson PLLC law firm.
“I think part of the reason that the pay disparity still exists is that it’s very difficult to uncover information about pay,” she said. “And I think it’s very easy for employers to tie pay to performance, and performance is subjective. When you have that element of subjectivity in a decision such as how much to pay someone, you often end up with disparity.”
Whys and wherefores
Lilly Ledbetter was a supervisor for 19 years at Goodyear Tire & Rubber Co. in Gadsden, Ala. She sued the company upon retirement for unfair pay after discovering that during her stint at Goodyear, she had been paid less than male supervisors who were doing equivalent work.
In March 1998, Ledbetter inquired into possible sexual discrimination at the Goodyear Tire & Rubber Co. She filed formal charges with the U.S. Equal Employment Opportunity Commission in July 1998.
In November 1998, after taking early retirement, Ledbetter sued, claiming pay discrimination under Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963.
Her case went all the way to the U.S. Supreme Court, which ruled in 2007 that Ledbetter should have filed suit within 180 days of her first unequal paycheck, not 180 days from the time she learned of the difference in pay.
The ruling upended long-standing court practices, which had held that the 180-day time frame begins when the employee becomes aware of potential pay discrimination.
But Ledbetter didn’t know what her co-workers were earning. In many workplaces, discussing salaries is grounds for punishment and even termination. That is one reason why today, on average, women make 77 cents for every dollar a man earns, the National Women’s Law Center reports.
The Ledbetter act would implement a six-month statute of limitations for victims of pay disparity to sue their employers, and that six-month period would expire from the time the employees received their final paycheck. It also would make each unequal paycheck a separate employer violation.
The Ledbetter Act, or H.R. 11, passed 247-171 in the House last week, with an overwhelming majority of Republicans voting against it.
In Tennessee, all five Democratic representatives voted for the act, and all four Republican representatives voted against it.
The Paycheck Fairness Act, or H.R. 12, expands on the Equal Pay Act as well as the Fair Labor Standards Act of 1938.
This proposed legislation would stiffen penalties for employers who are caught being discriminatory in administering salaries, and it would also provide protection to employees who share their salary information with colleagues – which could help prevent quandaries such as Ledbetter’s from arising in the future.
The PFA also would require some employers to disclose to the EEOC their wage rates for general job classifications, and prohibits employers from lowering a worker’s salary in an effort to pay others fairly.
Hagerman said the reporting to the EEOC is one of the most important aspects of this proposed act.
“The more information there is available to people, the easier it will be to determine whether there is, in fact, pay disparity,” she said.
The PFA would also, among other things, require the U.S. secretary of labor to “conduct studies and provide information to employers, labor organizations and the general public regarding the means available to eliminate pay disparities between men and women,” according to a summarization of the act at www.GovTrack.us.
This act passed in the House 256-163, again with a majority of Republicans voting against it. Once more, in Tennessee, all the Republican representatives voted no, while all the Democrats voted yes.
A likely outcome
Neither act has become law, but with a majority-Democrat Senate and Democratic president-elect, they are widely expected to pass.
One of the biggest changes employees will see is a broader ability to collect in lawsuits.
“The Paycheck Fairness Act expands the remedies previously granted by the Equal Pay Act,” Hagerman said. “The Equal Pay Act makes it illegal for employers to pay men more than women for substantially the same work, and previously, the damages were not as broad as they are going to be under the new act, if it passes.”
“The remedies will now include broader compensatory damages and punitive damages. So, in laymen’s terms, you can recover a lot more money.”
Also, the PFA would allow an EPA lawsuit to proceed as a class-action case as long as it conforms with the Federal Rules of Civil Procedure.
“Currently, it is very difficult to bring EPA suits as class actions because the EPA … requires plaintiffs to opt in to a suit,” reads a report from the National Women’s Law Center. “Under the federal rule, class members are automatically considered part of the class until they choose to opt out of the class.”
Also under the EPA, when it’s discovered that an employer has been paying women less than men for equal work, the employer can legally claim an “affirmative defense,” which would say the pay difference is because of a factor other than gender. The passage of the PFA would tighten this defense by requiring the employer to prove the pay difference really is not related to gender, but job performance.
If the acts are passed, workers who discover pay discrepancy can expect to have an easier time.