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Lilly Ledbetter Did Not Alter Pay Equity Gap Whatsoever

Those of us in the blogosphere have become inured to defenders of the President ticking off a laundry list of his accomplishments. On the domestic policy front, this includes health care and financial reform, the auto industry rescue, and a series of other smaller bills that have taken on a much larger significance in the aftermath of their passage, particularly in an election year.

You hear about credit card reform and tobacco legislation and national service legislation, when these were blips on the radar screen at the time. And you always hear the words “Lilly Ledbetter” tossed about. This refers to a bill called the Lilly Ledbetter Fair Pay Act, which allows women like Lilly Ledbetter to challenge wage discrimination beyond a 180-day statute of limitations that was part of the Civil Rights Act of 1964. Ledbetter’s plight came to public attention because of a Supreme Court ruling in Ledbetter v. Goodyear, which ruled that the statute of limitations begins the first day of the wage discrimination, even though the employee may be unaware of it, not the day of most recent last paycheck [or when it became apparent.] So the bill changed that.

There’s no question this was the right decision. The Supreme Court ruling would have made women like Ledbetter powerless in most instances to challenge wage discrimination cases in court. But to hear tell of this, both from the Administration and its defenders, Lilly Ledbetter ushered in a golden age of pay equity in our nation’s employment centers. I don’t know where this comes from. The Ledbetter bill made a technical fix allowing after-the-fact challenges. It did not end wage discrimination in our time. In fact, we know that it didn’t, because the statistics are coming in, three years after the passage of the law.

Though the law expanded the legal remedies available to women who have been victims of discriminatory pay, little has been done to address the pay gap that exists between male and female employees. Since the Equal Pay Act of 1963 was signed into law, the pay gap has closed at less than half-a-cent per year. That trend is continuing, as the pay gap barely closed from 2009 to 2010.

Women made 77 percent of men’s earnings in 2009, the year the law passed. In 2010, that was virtually unchanged, as women’s wages rose to 77.4 percent of men’s. The gap is even larger for African Americans and Latinos: black women made 67.5 percent of all men’s earnings in 2009, while Latino women made 57.7 percent. In 2010, those figures ticked up to 67.7 percent and 58.7 percent, respectively.

Wage fairness hasn’t come to any Americans during the Great Recession, as wage gains are only starting to take hold. But that’s certainly true with respect to gender, regardless of Lilly Ledbetter.

The thing is, there was another bill out there. It would not only have made the technical fix of Ledbetter, but updated the Equal Pay Act of 1963, closed loopholes and made a much bigger difference in closing the pay gap. There was no reason why the Lilly Ledbetter Fair Pay Act could [not] have been combined with the Paycheck Fairness Act back at the beginning of the first term, in 2009. But while the bill passed the House quickly, Democrats in the Senate didn’t get around to taking up the Paycheck Fairness Act until the lame duck session of 2010, and it predictably failed 58-41, with all Republicans opposing. There’s obviously no guarantee that the Paycheck Fairness Act could have passed earlier in the term. But it’s plausible to argue that leveraging Lilly Ledbetter, which was a campaign issue, into a real advance on equal pay could have paid off. As it is, the Senate quickly got filibustered with little fanfare in the lame duck.

The point is there were other options. But the legislation that could have made a difference was left behind. And it severely damages the credibility of the Administration and its allies to keep waving the bloody shirt of Lilly Ledbetter when it actually did pretty much nothing for the larger cause of equal pay and equal work.

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David Dayen

David Dayen