But Your Husband Has A Job…

But Your Husband Has A Job…

For decades, companies paid female employees less because “her husband has a job” or because a male coworker “has a family to support.” Finally, a court called this pay practice what it is:  blatant discrimination.

 In Kellogg v. Ball State University d/b/a Indiana Academy for Science, Mathematics, and Humanities, Cheryl Kellogg was hired to be a teacher. The hiring director told her that she “didn’t need any more [starting salary] because he knew her husband worked.” Kellogg suffered the effects of this “outdated and improper approach” to her starting salary for the next 12 years.

When Kellogg finally sued for pay discrimination under Title VII and the Equal Pay Act, the Academy said that the pay differential was not discriminatory.  Instead, it claimed Kellogg’s lower pay was because of  (1) salary compression (paying newer hires more) and (2) difference in Kellogg and the male coworkers’ qualifications.

 In granting a motion for summary judgment, the district court ruled these two reasons were “undisputed” gender-neutral explanations for the salary disparity. 

 On appeal, Seventh Circuit said that the Academy “blatantly discriminated against Kellogg by telling her that, because her husband worked, she did not need more starting pay.” Such clear discrimination calls the sincerity of the Academy’s rationales into question.” It then reversed and remanded the case.

 This sharp rebuke was well deserved. 

 The district court erred in two significant ways.  First, it did not consider the statement that Kellogg did not need more pay because her husband worked.  It characterized that statement as a “stray remark.” The Seventh Circuit quickly dismissed that argument, noting that this statement “was not water cooler talk.” Instead, it was a straightforward explanation by the Academy’s director, who had control over setting salaries, as to why Kellogg did not need more money.  As it said, “few statements could more directly reveal the Academy’s motivations.”

 Second, the district court did not consider the discriminatory statement because it had been made outside of the statute of limitations period.  The Court of Appeals reminded that under the paycheck accrual role, as codified by the Lilly Ledbetter Fair Pay Act of 2009, a new cause of action for pay discrimination arises each time a plaintiff gets a paycheck resulting from an earlier discriminatory compensation practice—even one that occurred outside of the statute of limitations.

And, even apart from the paycheck accrual rule, it held Kellogg could rely on the statement’s to show that the Academy’s explanation for the pay disparity is pretextual because “time-barred acts [are allowed] as support for a timeline claim.”

Because the blatantly discriminatory statement that Kellogg did not need more pay because her husband worked put the Academy’s stated reasons for the pay different in dispute, the Seventh Circuit remanded this case.

That companies still make decisions about what to pay female employees based on a perception of whether a woman “needs” the money “because her husband works” or because her male coworker has a “family to support” is disheartening.

Let’s hope employers start to recognize this for what it is:  blatant discrimination.

Change The Law

Change The Law

If you do not like the law, change the law.

Sometimes, badly drafted laws lead to an unjust outcome. When that happens, we need to change the law.

Ruth Bader Ginsburg, the revered United States Supreme Court justice, died on September 18, 2020. When she died, I remembered how her powerful dissent in Lilly Ledbetter v. Goodyear Tire & Rubber Co. caused Congress to change the law. Justice Ginsburg’s strong dissent explained why the law needed to be changed and gave Congress a road map to follow.

At Fitzgerald Law, pursuing equal pay is a passion. And the story of Lilly Ledbetter explains why we sometimes need to focus our efforts on changing bad laws.

Lilly Ledbetter had worked for Goodyear for decades—paid less than men the entire time. Ledbetter did not know she was paid less than her male peers. Goodyear—like most employers—did not make that fact public knowledge. Only decades into her career did Ledbetter discover she had been underpaid. When that happened, she sued.

One of her claims alleged pay discrimination under Title VII. However, Ledbetter had a problem. Under Title VII, you must file a charge of discrimination with the EEOC within 300 days of an “adverse employment action.” The issue:  was the “adverse employment action” Goodyear’s original decision to pay Ledbetter less than her male peers, or was it each paycheck in which she was underpaid?

This mattered a great deal. If the adverse employment action was Goodyear’s original decision to pay Ledbetter less, the 300-day deadline to file her charge had expired decades before. Yet, if it was based on each paycheck she received in which she was paid less than her male peers, then Ledbetter’s charge was timely filed.

The Supreme Court ruled that the deadline began on the date the discriminatory decision to pay Ledbetter less had been made by Goodyear. Never mind that Ledbetter did not learn of the decision for decades. 

So, Lilly Ledbetter lost.

However, Ruth Bader Ginsburg’s brilliant dissent explained how this outcome was a complete travesty of justice. She eloquently explained how companies hide pay discrimination and make it hard for a woman to discover she is underpaid compared to male peers.  She decried the injustice of it.

The many people who recognized the injustice of this result went to work.  They changed the law. 

In 2009, the first law that President Barack Obama signed into effect was the Lilly Ledbetter Fair Pay Act.  This law revised Title VII to clarify that the deadline to file a complaint of pay discrimination runs from each discriminatory paycheck—not the original decision to pay the employee less.

This landmark law changes the game and gives women a true chance to discover and timely file pay discrimination claims.

However, our work is not done.

Most people do not appreciate that the Texas law protecting women from pay discrimination claims requires that a charge be filed within 180 days of the “adverse action.”  For the past ten years, Texas refused to amend this law to adopt a state version of the Lilly Ledbetter Act.

So, in Texas, to pursue a pay discrimination claim under state law, you must file a charge of discrimination within 180 days of when the discriminatory pay decision was made by the company. 

Because companies take pains to keep salary data confidential, the odds of employees meeting that deadline are slim.

Texas lawmakers are failing women.  There is no good reason not to adopt a state equivalent of the Lilly Ledbetter Act—unless it is just an effort to allow companies to continue to pay women less and get away with it.

It is time to ask more of our Texas state senators and representatives. As we head into a new legislative session in 2021, ask them to do more.

 Let us continue the fight Ruth Bader Ginsburg started. If you do not like the law, change the law.