BusinessReport.com

Attorney Jill Craft fights discrimination for a living, which she wishes wasn’t necessary.

“I wait for the day when I come into work and I have no job, and I will happily go home and raise my three children and enjoy the rest of my life,” she says.

In the meantime, Craft has work to do. Some of her clients over the years could have been helped by the Lilly Ledbetter Fair Pay Act, the first bill signed by President Barack Obama.

Ledbetter was a supervisor at a Goodyear tire plant in Alabama who, months before taking retirement, discovered her male counterparts had been paid more than her for years despite having less experience. She sued for pay discrimination under the Civil Rights Act of 1964, and in a case that reached the Supreme Court, her claim was denied.

In a 5-4 vote, the court said the law required Ledbetter to file her claim within 180 days of the first discriminatory pay decision. One problem: Ledbetter had no idea that she was getting shortchanged. The Ledbetter act changed the law so that the time limit is measured from when someone is “affected by application of a discriminatory compensation decision,” which most observers say means the clock starts anew with every allegedly discriminatory paycheck.

Craft says pay discrimination is generally coupled with a hostile work environment.

The Ledbetter Act makes it easier for women and minorities to sue and actually collect compensation for unfair pay practices, which is one reason business interests opposed the bill.

A recent report by the American Association of University Women found Louisiana women with a college education earn, on average, 35% less than what college-educated men earn, the biggest gap in the nation. Other studies have found similar discrepancies throughout the nation. Putting all the blame on discrimination would be a mistake; some of the difference can be attributed to women choosing lower-paid professions like teaching or leaving the workforce mid-career to have children. But the AAUW says after such factors are taken into account, a difference of at least 5% still exists.

The pay gap can cost women between $500,000 and $1 million over a lifetime in salary and benefits, the AAUW says; the Ledbetter Act theoretically makes it easier for women to at least collect some of that money. But some business groups predict the new law will spawn a dramatic increase in discrimination suits, forcing employers and managers to defend pay decisions made years ago.

“The bill ignores existing legal doctrines that protect unknowing victims and expands the law so that even workers who do know all the relevant facts and yet fail to exercise their rights for years may still have a viable claim,” says Dan Juneau, president of Louisiana Business and Industry. A business could have unknown legal liabilities, always a scary concept.

In light of the new law, employers might want to review document-retention practices within the company and establish measurable, documented pay guidelines, so if an issue comes up down the road they can justify any pay differences with legitimate, nondiscriminatory reasons.

“A lot of recommendations boil down to, in the future, being able to document what you’ve done in the past,” says labor and employment attorney Ed Hardin Jr. Measures taken today can be a godsend to a corporate lawyer or human resource manager in 10 years, who can then point to something specific, “rather than saying ‘I don’t know why Suzie was paid X and Johnny was paid Y,’” he says.

In Louisiana, an employee has 300 days from the last allegedly discriminatory act to file a claim with the U.S. Equal Employment Opportunity Commission.

While national business groups might not have been able to stop Ledbetter, local interests did notch a victory in the Louisiana Legislature, helping kill the Louisiana Equal Pay for Women Act on May 21. But the debate could really get interesting if and when the Equal Rights Amendment gets to the floor.

The ERA states: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” Essentially, the amendment would subject gender-discrimination claims to the same strict scrutiny the courts give to racial-discrimination claims. Long a prominent feminist cause, the ERA fizzled in 1982 when only 35 of the required 38 states ratified the measure within the 10-year time frame set by Congress.

But in 1992, the 27th amendment, which deals with congressional pay raises, was ratified 203 years after it first won approval from Congress. Under that precedent, the ERA is still alive, and could still be added to the Constitution with the approval of three more states, supporters argue. Louisiana could be one of those three states. Roberta Madden, co-
coordinator of the Louisiana Coalition for the Equal Rights Amendment, says the Lilly Ledbetter Act might not have been as sorely needed if the ERA was in place.

“It would give us a constitutional bedrock on which to base these kinds of things, and I think companies would probably clean up their act in not paying men and women equally if they knew they would be dragged into court,” Madden says. “[In the Lilly Ledbetter case], they were dragged into court and they won, but then Congress overturned that. We shouldn’t have to beg Congress every time to overturn it. We need some Constitutional protection.”

But Craft, while in agreement with the Ledbetter Act, isn’t convinced more laws to prevent gender discrimination are needed. “My goal would be, let’s just treat everyone fair across the board,” she says.

Unless you fit within one of the traditional protected categories based on your race, sex, national origin or the like, and you are discriminated against based on your status in that group, you generally don’t have a legal claim.

She also would like to see more attorneys taking an interest in discrimination and civil rights litigation. The average turnaround for an employment discrimination case is two to four years; even if Craft worked 24 hours a day, she would never be able to help as many people as she’d like to.

“I wish there were more people who were willing to stand up. I think the fix to the problem is not a legislative one,” she says. “I think it is better left to the court system, and fundamentally, to people who are brave enough to stand up and speak out about it.”

The gap

States with the biggest wage gap between college-educated men and women 25 and over:

Louisiana 35%

West Virginia 33%

Mississippi 33%

Virginia 33%

Oklahoma 33%

States with the smallest gap:

Vermont 13%

Hawaii 17%

Delaware 20%

New York 22%

Montana 23%

Nation 29%

SOURCE: U.S. Census Bureau