As One Pay Equity Bill Becomes Law, Another Languishes
At this very moment, President Obama is preparing to sign the Lilly Ledbetter Fair Pay Act into law. It's an admirable bill that remedies a regrettable 2007 Supreme Court ruling which had constrained the time limit for women to file pay-discrimination claims against their employers.
Media coverage of today's White House ceremony depicts the Ledbetter signing as a major victory for gender pay equity. But a much broader bill addressing pay discrimination -- the Paycheck Fairness Act -- faces a mysteriously uncertain future in the Senate, where it has yet to receive a floor vote despite approval in the House last year and again this year.
What's the holdup? And will the (well-deserved) hoopla over the Ledbetter victory obscure the facts behind the inaction on Paycheck Fairness?
When the House passed the Ledbetter measure, which deals narrowly with the Supreme Court ruling in Ledbetter v. Goodyear, it combined that bill with the Paycheck Fairness Act (PFA), which would refine the 1963 Equal Pay Act in several major ways.
In addition to making it easier for women to file class action suits alleging pay discrimination, the PFA would require employers to meet a burden of proof when alleging that unequal pay for female workers is justified by a "factor other than sex." Women would also become eligible under the bill for compensatory damages when they prevail in wage discrimination suits. Before his election last year, Obama was a co-sponsor of the PFA, which was championed by now-Secretary of State Hillary Clinton.
So now that Obama's in the White House, and Democrats have greater majorities in the House and Senate, one would think that the PFA had a better chance of making it into law today. The Hartford Courant reported last week that Rep. Rosa DeLauro (D-CT), the bill's House-side champion, expects it to be passed by springtime.
But in Washington, issues often get starved of attention after one victory is achieved and a resting-on-laurels mentality sets in. And we know who's rooting for the PFA to fall by the wayside: K Street.
In 2007 testimony "strongly oppos[ing]" the PFA, the U.S. Chamber of Commerce suggested that pay inequity exists because of women's "personal choice" and their propensity to take on parenting duties:
The proponents of the Act have not cited any evidence establishing that the existing wage gap is caused by employer discrimination. ... As labor economists and feminist scholars alike have proven and observed, the existing wage gap between men and women is attributable to a number of factors ... includ[ing]: personal choice; women's disproportionate responsibilities as caregivers and other family obligations; education; self-selection for promotions and the attendant status and monetary awards; and other "human capital" factors.
Late Update: In its statement on the Ledbetter signing, the ACLU made sure not to forget Paycheck Fairness. From counsel Deborah J. Vagins:
The Lilly Ledbetter Fair Pay Act rights the wrong done by the Supreme Court in Ledbetter v. Goodyear. With this law, people who have suffered pay discrimination can once again seek vindication without facing unduly and unfairly restrictive deadlines. Now that Congress and the President have restored access to the courthouse, it is time to close the loopholes that make wage discrimination possible by passing the Paycheck Fairness Act.
Later Timeframe Update: Sen. Barbara Mikulski (D-MD), the Ledbetter bill's champion and a potential new leader on the Paycheck Fairness Act, has said the Senate could take action on the PFA as soon as the spring.
Jocelyn Samuels, vice president for education and employment at the National Women's Law Center, agreed. "There are any number of champions for fair pay in the Senate who, I think, recognize that while the Ledbetter bill is a fabulous down payment on ensuring pay equity for women, we need to do more than restore prior law [as the Ledbetter bill does] -- we need to move it forward," she told me.
Asked about the opposition from the Chamber and other employer groups, Samuels stressed the importance of educating senators and the public about the realistic possibility for punitive damages awarded under the PFA.
"Some of the concerns that have been expressed about the bill have been really misinformed," she said. Under the PFA, women who can meet the burden of proof for wage discrimination based on gender are allowed the same opportunity to collect court damages as those subjected to racial or ethnic discrimination.
Kim Gandy, president of the National Organization for Women, said the House packaged the Ledbetter bill with the PFA "for a reason"; namely, the desire to use the momentum of the better-known former to help propel the lesser-known latter measure to passage. "It's a little harder without that moving train," she added, "but there's no reason they can't or won't pursue it [in the Senate]."




















Thanks for the late update, Elana!
January 29, 2009 10:55 AM | Reply | Permalink
Thank you Elana. This is an important story that, to my shame, I was not aware of.
January 29, 2009 11:05 AM | Reply | Permalink
OMG. Why do I have the sinking feeling that we will now be bomarded with bombastic, hyperbolic rants about how Obama and the Congressional Democrats are all spineless Chamberlin-esque appeasers and women-haters who have sold out the base if the bill isn't on the floor by noon tomorrow?
January 29, 2009 11:16 AM | Reply | Permalink
Cosign.
January 29, 2009 11:23 AM | Reply | Permalink
Because you're a moron? Just a wild guess.
January 29, 2009 11:35 AM | Reply | Permalink
Ooooo touchy....hit a little close to home eh?
January 29, 2009 11:46 AM | Reply | Permalink
I'll link to this post when you gear up for your next "Obama is fucking liberals" tirades and we'll see.
January 29, 2009 12:15 PM | Reply | Permalink
shut up.
January 29, 2009 1:24 PM | Reply | Permalink
You first, kimosabe . . .
January 29, 2009 2:33 PM | Reply | Permalink
My city (like many others) gives money to the local Chamber of Commerce. In fact, I think the city is a dues paying member of the chamber. The local chamber pays dues to the U.S. Chamber of Commerce, an organization that lobbies against equal pay for women. So my city and many other cities are supporting the lobbying against equal pay with taxpayer money.
January 29, 2009 11:06 AM | Reply | Permalink
Do they lobby against "equal pay for the same work" or do they lobby against evaluating different work under the "comparable worth" scheme?
There is a difference.
January 30, 2009 12:27 AM | Reply | Permalink
So you are suggesting that Obama take on the role of Senate majority leader as well as President?
Please explain what was incorrect about the point in the article where the Senate Dems say they had to do them separately or risk losing them both? Were they wrong? Do they really not want both to pass eventually? Has the Senate suddenly become subject to strict majority vote rules like the House?
It's like we have suddenly entered a world in which everything we want to have happen should just happen now. When has that ever been true in politics? Ever? By all mean let us know what you are for and why, but stop expecting the process of legislating to magically disappear.
January 29, 2009 11:24 AM | Reply | Permalink
Exactly. I think some people wake up every morning saying "now, what can I find that the Democrats haven't done yet so I can show my outrageous indignation at their treachery?"
This is why we've lost so many worthy battles--all rant and no strategy. We've too often traded feeling good about the fight for feeling good about the outcome.
January 29, 2009 12:18 PM | Reply | Permalink
It doesn't require much of a strategy, other than the Majority Leader making it a priority and moving it through for a vote. It's amazing how fast they can pass something when they want to, and there's no reason they shouldn't at this point.
Or you could just sit back and congratulate them for simply reversing a bad faith interpretation of the law and act like it's some great leap forward, while at the same time engaging in strawmen arguments and dishonest characterizations of others.
January 29, 2009 1:43 PM | Reply | Permalink
Is this supposed to make sense? OK. You may return to your padded room now. Your jello will be served shortly. Don't forget your drool cup.
January 29, 2009 2:36 PM | Reply | Permalink
It's not that they can't pass it, Obamaman. It's that they don't want to give the Republicans too big of a target, by giving the appearance of pandering to particular constituencies or special interests.
The Obama team and Congress are approaching this kind of legislation in a very smart way, in order to avoid the appearance of being too partisan. It was a very wise thing to strip the contraceptives out of the final stimulus package, for example, not because the contraceptives legislation doesn't deserve to be passed at some point, but because it simply wasn't wise to have it in legislation that the public expects reasonably will be for fixing the economy. As such, they are saving their political capitol for passing the really big legislation still to come.
Once they get the most contentious parts of their policies through Congress, the rest will be comparatively easy.
By being strategic about such things, and by reaching out to the Republicans in largely symbolic ways, Obama is doing a great job of making the Republican Congress look like petty extremists who want him to fail. They'll have to defend that record in another 19 months, when many of them are up for reelection.
January 29, 2009 2:41 PM | Reply | Permalink
Isn't this a good first step? What would have happened if they re-started debate on the floor about PFA, without having first brought to the fore, and resolved in the light of day, the Ledbetter issue.
(I only broadly know what I'm talking about. Please correct the error in my thinking here, should it be necessary.)
January 29, 2009 1:07 PM | Reply | Permalink
Sure it's a good first step, but as I noted, it's really just putting things back to where they were before the SCOTUS engaged in some very bad faith interpretation of the law.
Now they're making things very clear for the more obtuse members of the Court.
At this point, there's no reason not to move forward swiftly on Paycheck Fairness. That is, once the stimulus bill is done.
January 29, 2009 2:32 PM | Reply | Permalink
A less hysterical and more neutral way to frame this could have been, "Ledbetter passes; fight for PFA continues," or something to that effect. The giant sense of betrayal expressed here -- what, just over a week into Obama's administration -- is just too much.
Personally, I prefer my news reported to me rather than pushed on me with some catchy angle or hook. Trust me, I'll read what you write and don't need to be tricked into it with overblown, faux outrage. Intelligent readers don't need yellow journalism to spur us into following your reporting.
January 29, 2009 1:15 PM | Reply | Permalink
For the record, I don't consider myself in any way betrayed by Obama at this point, I just don't know why they can't move the PFA through the Senate. I'm guessing that there's some opposition from certain Democrats who are beholden to corporate interests--although it could be anything. I'm sure that most Republicans oppose it, because God forbid women have access to the courts when their employer cheats them out of equal pay.
January 29, 2009 1:52 PM | Reply | Permalink
"(I only broadly know what I'm talking about. Please correct the error in my thinking here, should it be necessary.)"
Ha, that would make a great all purpose sig line.
The headlines on my local news website: "Obama signs equal-pay legislation"
Well, now THAT is misleading. I'm not complaining about Obama or the Dems, just hoping that the need for PTA to be passed doesn't get lost in headlines that seem to imply Obama signed a bill that gives equal pay to women, when what he signed gives women more time to sue, but not equal pay protection.
January 29, 2009 2:01 PM | Reply | Permalink
C'mon... the guy just signed his first bill into law, and you're going to drub him and the Democrats around the ears because one bill is supposedly "languishing"?!
You do know that word implies "to be or become feeble, weak, or enervated" and "to suffer neglect", right?! Please... we're not even out of the first hundred days, so choose your words wisely.
Since when is it neglect to not pass every piece of legislation for any given special interest on day one?
Trying to ram through too much of one kind of legislation at once would risk a "death by a thousand papercuts", helping to confirm the Republican Party's claim that all the Democrats are is a bunch of disunified, greedy special interests. You'd rather give blowhards like Rush and Hannity a big target, to smear with a big brush, rather than letting them seem petty and juvenile.
They'd say that Obama was elected to fix the economy, not to pander... and unfortunately, they'd have a point.
There are a ton of battles to fight, big and small. It's great that the Democrats chose the Lilly Letbetter Law to be the first of these battles, and I would be very much surprised if in the next election, the Democrats don't target women, saying "Vote for us, because the *FIRST* thing we did in the Obama administration was to fight for women!"
Is that political. Sure. But if you care about their ability to still pass such legislation after the *NEXT* election, you want them to be able to make that argument, while still doing their best not to give the Republicans too big of a target to shoot at, especially during the first hundred days.
For this reason alone, we should be *damn* glad that the contraception legislation was stripped out of the economic stimulus package, because the Republicans would've mobilized the Religious Right for the next several years on that fact alone.
It's good legislation, and should be passed -- just not in that way, at that time.
When Obama reaches out to the Republican leadership, that's not necessarily to win them over. That's largely so that *WE* will see him trying to be fair and above partisan bickering. If Republicans choose to fight him every step of the way, then they're the ones who will have to come back to their constituents 18 months from now and try to defend that record.
Please... consider being accurate, less divisive, and more aware when you write these kinds of articles, because they are distinctly unhelpful to the kind of change we'd all like to see.
Let's do our best not make this a two-year administration, followed by two to six years of a lame-duck, deadlocked Congress. I would like the Democrats have at least six years this time around where they can *REALLY* make a difference -- long enough, ideally, to reverse all the damage of the Bush years and to show the American people that a Democratic majority is the best choice for their future.
January 29, 2009 2:24 PM | Reply | Permalink
"Please... consider being accurate, less divisive, and more aware when you write these kinds of articles, because they are distinctly unhelpful to the kind of change we'd all like to see."
Markkraft, you do you think the article is divisive? The author pointed out that the U.S.Chamber of Commerce opposes PFA and ACLU supports it. How is mentioning who is opposed and who supports legislation "unhelpful". I thought Obama's election was "all about us", the people. Are you saying we have to first coddle the GOP for a couple of years and then we can try for equal rights for women? What exactly are you saying? Progressive bloggers should just shut up and wait until Obama charms the GOP? Surely, Obama is smarter than that and knows that is not gonna happen, so I don't think that is his plan. But is it what you are saying?
January 29, 2009 2:44 PM | Reply | Permalink
"I thought Obama's election was "all about us", the people."
It's about *ALL* the people, ultimately, because that is where the power comes from. It comes from you, and it comes from Joe Sixpack, who voted Dem this time around because McCain seemed like weak sauce on the economy.
Joe Sixpack doesn't care much about this legislation, even though our president does. He certainly doesn't want it crammed into something like a stimulus bill, and he catches FoxNews in the workroom on his breaks, and though he suspects that Fox is slanted, he might not like hearing that all the legislation being passed at any one moment is slanted towards women's issues.
This isn't to diminish the legislation in any way, but the fact remains, most people tend to think that someone else's rights come at their expense, as opposed to them being inextricably linked.
For strategic purposes, it is far better to pass legislation in small, manageable, bitesized pieces. The rationale being that the Republicans will pretty much complain about it no matter what, so you don't want to give them a big target to whack at, if you can avoid it.
That's why we're probably going to see national healthcare rolled out incrementally, with a government I.T. overhaul of healthcare to make the system more centralized and cost-effective as a first step. That's also why Hillary Clinton made her Senate legislative career quite effectively with all sorts of small pieces of legislation for things like Childcare, rather than one big omnibus package that could be picked apart for months. It took Hillarycare to show her the value of "chunking"... breaking big projects up into bitesized pieces.
Are you saying we have to first coddle the GOP for a couple of years and then we can try for equal rights for women?"
Did I say that? No. That *would* be languishing; something which this legislation most certainly is not doing yet.
The art of politics is like foreplay. Last I heard, there were advantages to not having the other party involved scream in pain when you try to stick it to 'em.
"Progressive bloggers should just shut up and wait until Obama charms the GOP?"
You clearly don't understand the point of charming the GOP, especially if they're non-cooperative. The point isn't necessarily to get them to cooperate, though that would be nice. Much of the point is in convincing Joe Sixpack and all those independent voters out there that you're being reasonable, not too overtly partisan, and focused on the important things. Given that they're the ones who decide most elections, this is pretty vital.
That doesn't mean that important legislation languishes. Rather, it means that you have to break up legislation, pick the right fights at the right time, publically emphasize certain pieces of legislation, while passing some smaller pieces between the cracks.
The President is doing his utmost to give the appearance of listening to the Republicans, but they're having none of it, so far. This isn't a very popular stance in much of the country, but it's the stance they're going to have to defend in just another 20 months or so, when they have to tell their people they voted against new local jobs, against local teachers, against the police and fire department, and even voted against tax cuts.
So yes, Obama will be very reasonable and bipartisan, but most of what the Republicans will get out of it is symbolic.
He's definitely intent on getting his legislation passed, but he's doing it in a very strategically smart manner. He doesn't want to seem like he's being overtly partisan or inconsiderate, because he doesn't want to fall into the same trap that Clinton did -- trying to pass a big partisan mess of omnibus legislation that can be extensively ripped apart for months, only to lose control of the House just two years later, in a landslide.
Obama wants to be able to have a solid majority in the House and Senate for long enough to get the BIG legislation and BIG changes into law, because he wants to succeed where others have failed for decades.
If you really care about passing a sweeping progressive agenda into law, then you should appreciate the wisdom of letting him choose his fights when he is ready for them, rather than expecting him to ram everything through so quickly that it sets off alarm bells for the Republicans and leads to Obama's administration being two years of activity and six years of lame-duckitude like Clinton's.
If you want sweeping progressive change, then you should want the President to get through the next few years with his popularity and bipartisan appeal imtact, so that he holds onto or even expands the reach of the Democratic Party as a whole.
January 29, 2009 9:27 PM | Reply | Permalink
"Markkraft, you do you think the article is divisive?"
By suggesting that the legislation was left to languish, then yes, I consider it divisive, inaccurate in tone, and ultimately unhelpful.
It helps reinforce one of the strongest Republican arguments -- that Democrats are only a bunch of competing special interest groups, and not a unified party.
The first few weeks of the Obama administration is hardly the time to be pointing out what hasn't been passed yet, no matter how good the legislation is, no matter who it benefits. The Obama team has a plan and a schedule on how they think they can get it all passed, and it hurts our party to agitate about such things unless they really do languish and really are being stonewalled.
January 29, 2009 9:37 PM | Reply | Permalink
I think the argument offered by the Chamber of Commerce is worth looking into. I think there is a lot of science behind it.
January 29, 2009 2:50 PM | Reply | Permalink
The notion that this bill will lead to "frivolous litigation" or "will only benefit trial lawyers and those in that profession" (McSame) makes as much sense as arguing that caps on damages reduces frivolous litigation. Such arguments are empty calories, they sound good at first, until you realize they have no substance.
Frivolous cases are those that have no merit, and therefor have the least value. Targeting cases that have the most value (and the most merit) does what now? Likewise, allowing Plaintiffs to recover their proven unjust unequal pay beyond 180 days is frivolous because why?
But I "agree", it is a "very compelling" argument that women earn less because they are not as motivated and ambitious as men. Perhaps they need psychological counseling in addition to the training that McSame said they need. Yeah, that's the ticket . . .
ugh
January 29, 2009 3:15 PM | Reply | Permalink
Nice strawman argument there, especially your use of quotes around terms that I've never used.
If you have a comment on the actual substance of my argument (rather than your assumptions of what my argument might be), my suggestion is that you read my piece. If you have read my piece, and those are your comments, then I might suggest you work on your reading comprehension.
January 29, 2009 3:25 PM | Reply | Permalink
Actually I wrote my reply with quotes and was tongue-in-cheek because I did not realize that you wrote the article! The first two paragraphs relate to the arguments routinely used by the Chamber of Commerce. The third paragraph was to the author of the article (you). And you are right, I should have used your actual words:"My question for you: if men make more money and women are happier, then who is the victim?" Nice. How Machiavellian. I suppose we should pity the masters and not their slaves too? After all, the masters had all of the responsibility and the slaves had none . . .
Now that I realize that you are the author, I might suggest that you work on your human compassion skills. In your "statistical interest" in the subject you fail to appreciate the individual human component, i.e., the women who suffer from discrimination in the workplace. For your information, I have represented women who had the same education, same experience, performed the same work, but were paid substantially less because "they were not responsible for supporting a family." They did not chose to "live a better life for less pay." They chose to do the same work as men but were discriminated against. Perhaps you would like to explain your theory to them so they can understand how they were not victims of discrimination? I thought not.
And please spare me the "that was not the point of my article" crap, the tone of your article belies your views just like authors of the Bush torture memos. There is always a justification that can be made, it just takes the right kind of person to make it.
January 29, 2009 8:59 PM | Reply | Permalink
I wrote on this a while ago. Thanks for publicizing it. I believe that Obama told the Senate to yank it from consideration. And I think it's probably because he fundamentally disagrees with parts of it (or all of it) -- not because he wants to take a pragmatic approach. The bill is very plantiff-friendly and it reforms substantive rights. Obama is a proceduralist. As long as people have habeas and safe prisons, better statutes of limitations law, etc., then it doesn't matter how the outcome looks. Cheerleading for Ledbetter Law Drowns Out Discussion of More Progressive Pay Equity Measure
January 31, 2009 6:08 PM | Reply | Permalink