I did some reading up on the Ledbetter case. I actually read Alito's ruling and passages from the bill. The court ruled that though the system Goodyear used to decide pay was not facially discriminatory, the performance reviews had been conducted with the intent of discriminating against her on the basis of her gender. It ruled, however, that the specific performance reviews that had been discriminatory had not only taken place years before, but that Ledbetter had not promptly filed her complaint even after learning of the pay disparity, but had instead waited until years later.
So yes, the law now explicitly authorizes the legal argument she made to the court, that every paycheck received is a fresh violation of the statute and makes the complaint ripe again. What I suppose this leads to is greater incentive toward pay equality, since employees now have greater power to sue if they detect pay imbalances, even if they don't act promptly . It certainly also increases the complexity of a performance review, since managers are now responsible not only for fairly evaluating the performance of their employee at the present moment, but for evaluating them in the past, possibly even before the manager was working there, to make sure a violation wasn't committed in past performance reviews.
But what's striking is how bizarre a solution this is. If the problem is that 180 days after a violation is too short a time to file, as even Alito concedes it seems to him to be in his decision in Ledbetter, extend the time! That too will add expense and complication for businesses, but it's at least logical and clear. The reason Congress didn't go for that approach is because Congress intended from the start to have a short statute of limitations in its EEOC law. The weird thing about the Ledbetter law is that it's tailored to engineer a weirdly specific solution to a problem that drew public attention for its apparently inappropriate resolution, without breaking the careful balance that exists in EEOC law between allowing employees to redress legitimate discrimination and requiring employers to expend undue effort to demonstrate compliance. See, all regulation is a compromise between adding extra cost to doing business and solving some problem the government believes it has an interest in. Congress did not want, and still does not want, to allow arbitrary EEOC complaints by employees. It doesn't want the situation where a person is discriminated against and ten or twenty years later they seek financial redress. If Lily Ledbetter had wanted to complain about her unfair performance reviews, she should have filed her complaint when she learned of the pay disparity. That's what the Supreme Court said explicitly. That's what Congress said implicitly.
Will it get more women hired? No. But, to this day, women are, on average, making about 75 cents on the dollar compared to men doing the same job. In just about every field of work. The law gives them a way to fight that.
The 75 cents number is fiercely debated because the assumptions one makes when calculating it have a huge impact on the number. But I'm not prepared to litigate it with you. I'm willing to concede that women are paid less than men, overall. That notwithstanding, the law doesn't give them a new way to fight it. They already had a way, called the EEOC. What the law does is make the law governing the EEOC more friendly to plaintiffs and more hostile to defendants. And at a certain point in this argument I need to go back to my exegesis of Mitt. The bottom line is that these regulations don't actually work, no matter how friendly they are to the plaintiffs. They make things more expensive and they still don't make hiring directors hire more women.
I'm not really too invested in the literal truth of Romney's story. I'm prepared to accept it as a parable, because I've seen things like it happen. It is so easy to be the pillock who hires more men than women and doesn't realize they're doing anything wrong (And Mitt definitely casts himself as the pillock in this story, albeit the pillock who discovers his mistake). It is so easy to construct facially equitable job criteria or promotion criteria or salary criteria and then find that they favor men. It's not even obvious to me that in all cases, doing so is wrong*, though I will certainly concede that there are even cases where it is done unintentionally and is still wrong. I'm not prepared to hide behind ignorance and privilege as excuses for not working toward gender fairness in the workplace. And I think there are many cases where it is good that we have the EEOC as a resource when people are discriminated against in the workplace. But that's not the solution to the problem of pay disparity or hiring imbalance. It will never be the solution to the problem.
what he's saying is that with all his vaunted business experience and surrounded by professional advisers, he still had to actually go digging around to find qualified women?
I really don't understand the suggestion that Mitt should have somehow already had women on his list. Let's face facts. There are many more corporate executives who are male than female. There are many more non-profit executives who are male than female. There are many more state legislators, county legislators, city council members who are male than female. These are obvious pools to pull from when looking for cabinet members. It stands to reason that unless you put some effort in, the pool of candidates is going to skew male. Romney was saying that there are a great many qualified, talented women out there who would do great in these jobs, but you're not going to get them without, yes, digging, because they're not in the obvious places. If you just sit back and do the same apparently gender-neutral hiring procedure you've been doing for years, you will not get as many women as men for high powered jobs. And regulation from the EEOC will not change that.
This isn't news. Structural barriers to women occupying positions of power isn't something Romney discovered. But liberals have had the theory for years that those structural problems can be solved with government-imposed social engineering. And Romney's story, whatever its truth, is at minimum a clear parable about the problems of solving social problems through legislated social engineering. You can't force companies to hire women. It just doesn't work, and all the law does is let you be self-congratulatory, and beefs up our federal anti-discrimination apparatus.
*One of the cases Justice Alito cites in his Ledbetter decision is of a flight attendant fired in the seventies for getting pregnant. Upon being rehired some years later, her seniority was reset to zero. The Court in that case ruled that though the original act of firing was discriminatory (and outside the statute of limitations by the time she filed her complaint) , the act of treating her as a new hire with no seniority was a neutral application of the company's policies and was not discriminatory. Now, obviously decisions like this hurt pay equity, and you could advance an argument that if pay equity were really our goal, leaving work to give birth would never impact seniority. But I think this feels like one of those cases where we sacrifice gender pay equity to the goal of general fairness. If a rule is constructed with the intention of being fair to all genders, and it actually is in general fair to both genders but in one particular instance because of fluky bad luck it turns out to hurt women more than men, how far do we need to go to create loopholes in the generally fair rule? Is it fair to workers who maintain continual employment as the company desires and are rewarded for it that a person who moves in and out of the job, costing the company money in retraining and other HR expenses, gets treated the same? I'm not saying necessarily that the Court got the moral answer in that case, because obviously there was legitimate discrimination when she was fired for getting pregnant, but when I try working out the implications, I find I'm not happy with solving the problem by discarding a fair and neutral rule. I don't want a legal system where the court can say, "No, this rule was not discriminatory, but we claim the right to invalidate it anyway in order to redress a different, discriminatory rule." That's not a legal system, that's a house of cards.
sorry for the delay
So yes, the law now explicitly authorizes the legal argument she made to the court, that every paycheck received is a fresh violation of the statute and makes the complaint ripe again. What I suppose this leads to is greater incentive toward pay equality, since employees now have greater power to sue if they detect pay imbalances, even if they don't act promptly . It certainly also increases the complexity of a performance review, since managers are now responsible not only for fairly evaluating the performance of their employee at the present moment, but for evaluating them in the past, possibly even before the manager was working there, to make sure a violation wasn't committed in past performance reviews.
But what's striking is how bizarre a solution this is. If the problem is that 180 days after a violation is too short a time to file, as even Alito concedes it seems to him to be in his decision in Ledbetter, extend the time! That too will add expense and complication for businesses, but it's at least logical and clear. The reason Congress didn't go for that approach is because Congress intended from the start to have a short statute of limitations in its EEOC law. The weird thing about the Ledbetter law is that it's tailored to engineer a weirdly specific solution to a problem that drew public attention for its apparently inappropriate resolution, without breaking the careful balance that exists in EEOC law between allowing employees to redress legitimate discrimination and requiring employers to expend undue effort to demonstrate compliance. See, all regulation is a compromise between adding extra cost to doing business and solving some problem the government believes it has an interest in. Congress did not want, and still does not want, to allow arbitrary EEOC complaints by employees. It doesn't want the situation where a person is discriminated against and ten or twenty years later they seek financial redress. If Lily Ledbetter had wanted to complain about her unfair performance reviews, she should have filed her complaint when she learned of the pay disparity. That's what the Supreme Court said explicitly. That's what Congress said implicitly.
Will it get more women hired? No. But, to this day, women are, on average, making about 75 cents on the dollar compared to men doing the same job. In just about every field of work. The law gives them a way to fight that.
The 75 cents number is fiercely debated because the assumptions one makes when calculating it have a huge impact on the number. But I'm not prepared to litigate it with you. I'm willing to concede that women are paid less than men, overall. That notwithstanding, the law doesn't give them a new way to fight it. They already had a way, called the EEOC. What the law does is make the law governing the EEOC more friendly to plaintiffs and more hostile to defendants. And at a certain point in this argument I need to go back to my exegesis of Mitt. The bottom line is that these regulations don't actually work, no matter how friendly they are to the plaintiffs. They make things more expensive and they still don't make hiring directors hire more women.
I'm not really too invested in the literal truth of Romney's story. I'm prepared to accept it as a parable, because I've seen things like it happen. It is so easy to be the pillock who hires more men than women and doesn't realize they're doing anything wrong (And Mitt definitely casts himself as the pillock in this story, albeit the pillock who discovers his mistake). It is so easy to construct facially equitable job criteria or promotion criteria or salary criteria and then find that they favor men. It's not even obvious to me that in all cases, doing so is wrong*, though I will certainly concede that there are even cases where it is done unintentionally and is still wrong. I'm not prepared to hide behind ignorance and privilege as excuses for not working toward gender fairness in the workplace. And I think there are many cases where it is good that we have the EEOC as a resource when people are discriminated against in the workplace. But that's not the solution to the problem of pay disparity or hiring imbalance. It will never be the solution to the problem.
what he's saying is that with all his vaunted business experience and surrounded by professional advisers, he still had to actually go digging around to find qualified women?
I really don't understand the suggestion that Mitt should have somehow already had women on his list. Let's face facts. There are many more corporate executives who are male than female. There are many more non-profit executives who are male than female. There are many more state legislators, county legislators, city council members who are male than female. These are obvious pools to pull from when looking for cabinet members. It stands to reason that unless you put some effort in, the pool of candidates is going to skew male. Romney was saying that there are a great many qualified, talented women out there who would do great in these jobs, but you're not going to get them without, yes, digging, because they're not in the obvious places. If you just sit back and do the same apparently gender-neutral hiring procedure you've been doing for years, you will not get as many women as men for high powered jobs. And regulation from the EEOC will not change that.
This isn't news. Structural barriers to women occupying positions of power isn't something Romney discovered. But liberals have had the theory for years that those structural problems can be solved with government-imposed social engineering. And Romney's story, whatever its truth, is at minimum a clear parable about the problems of solving social problems through legislated social engineering. You can't force companies to hire women. It just doesn't work, and all the law does is let you be self-congratulatory, and beefs up our federal anti-discrimination apparatus.
*One of the cases Justice Alito cites in his Ledbetter decision is of a flight attendant fired in the seventies for getting pregnant. Upon being rehired some years later, her seniority was reset to zero. The Court in that case ruled that though the original act of firing was discriminatory (and outside the statute of limitations by the time she filed her complaint) , the act of treating her as a new hire with no seniority was a neutral application of the company's policies and was not discriminatory. Now, obviously decisions like this hurt pay equity, and you could advance an argument that if pay equity were really our goal, leaving work to give birth would never impact seniority. But I think this feels like one of those cases where we sacrifice gender pay equity to the goal of general fairness. If a rule is constructed with the intention of being fair to all genders, and it actually is in general fair to both genders but in one particular instance because of fluky bad luck it turns out to hurt women more than men, how far do we need to go to create loopholes in the generally fair rule? Is it fair to workers who maintain continual employment as the company desires and are rewarded for it that a person who moves in and out of the job, costing the company money in retraining and other HR expenses, gets treated the same? I'm not saying necessarily that the Court got the moral answer in that case, because obviously there was legitimate discrimination when she was fired for getting pregnant, but when I try working out the implications, I find I'm not happy with solving the problem by discarding a fair and neutral rule. I don't want a legal system where the court can say, "No, this rule was not discriminatory, but we claim the right to invalidate it anyway in order to redress a different, discriminatory rule." That's not a legal system, that's a house of cards.