Mark Kirk For Pay Discrimination Against Your Daughters

UPDATE: Here is an update on Kirk's opposition to the Ledbetter Act, even after it passed and became law.

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Kirk has been trying to get play about his newly moderate voting record now that he's working within a Democratic Congress. However, Kirk's moderate votes are more rare than he currently wants to admit. Case in point is his recent vote against the Lilly Ledbetter Fair Pay Act (H.R. 2831) designed to remedy the issue raised by a Supreme Court decision, Ledbetter v. Goodyear Tire & Rubber Co., that requires workers to file pay discrimination lawsuits within 180 days after the discrimination occurs (the 180 day filing limit had begun way back when the very first paycheck showed lesser pay) and go back to the original intent and practice of Title VII enforcement.

Lilly Ledbetter was the plaintiff in that case who was denied justice because, while she suspected pay discrimination for a while, she was unable to substantiate her claim. Finally, after 19 years of service at a Goodyear Tire plant in Gadsden, Ala, she received hard evidence. The evidence came anonymously and showed that she was making about $6700 a year less than her least paid male counterpart. The jury at the trial court found that she was paid less due to gender discrimination, and awarded Ledbetter more than $3.5 million. However, that ruling was ultimately overturned because the court found that she filed greater than 180 days from the first instance of discrimination.

From Judge Ginsburgs dissenting opinion:

The Court’s insistence on immediate contest overlooks common characteristics of pay discrimination. Pay disparities often occur, as they did in Ledbetter’s case, in small increments; cause to suspect that discrimination is at work develops only over time. Comparative pay information, moreover, is often hidden from the employee’s view. Employers may keep under wraps the pay differentials maintained among supervisors, no less the reasonsfor those differentials. Small initial discrepancies may not be seen as meet for a federal case, particularly when the employee, trying to succeed in a nontraditional environment, is averse to making waves....

Congress never intended toimmunize forever discriminatory pay differentials unchallenged within 180 days of their adoption. This assessment gains weight when one comprehends that even a relatively minor pay disparity will expand exponentially over anemployee’s working life if raises are set as a percentage of prior pay....

To show how far the Court has strayed from interpretation of Title VII with fidelity to the Act’s core purpose, I return to the evidence Ledbetter presented at trial. Ledbetter proved to the jury the following: She was a member of a protected class; she performed work substantially equal to work of the dominant class (men); she was compensated less for that work; and the disparity was attributable to gender-based discrimination. See supra, at 1–2.

Specifically, Ledbetter’s evidence demonstrated that her current pay was discriminatorily low due to a long series of decisions reflecting Goodyear’s pervasive discrimination against women managers in general and Ledbetter in particular. Ledbetter’s former supervisor, for example, admitted to the jury that Ledbetter’s pay, during a particular one-year period, fell below Goodyear’s minimum threshold for her position. App. 93–97. Although Goodyear claimed the pay disparity was due to poor performance, the supervisor acknowledged that Ledbetter receiveda "Top Performance Award" in 1996. Id., at 90–93. The jury also heard testimony that another supervisor—who evaluated Ledbetter in 1997 and whose evaluation led to her most recent raise denial—was openly biased against women. Id., at 46, 77–82. And two women who had previously worked as managers at the plant told the jury theyhad been subject to pervasive discrimination and were paid less than their male counterparts. One was paid less than the men she supervised. Id., at 51–68. Ledbetter herself testified about the discriminatory animus conveyed to her by plant officials. Toward the end of her career, for instance, the plant manager told Ledbetter that the "plant did not need women, that [women] didn’t help it, [and] caused problems." Id., at 36.10 After weighing all the evidence, the jury found for Ledbetter, concluding that the pay disparity was due to intentional discrimination.

Yet, under the Court’s decision, the discrimination Ledbetter proved is not redressable under Title VII. Each and every pay decision she did not immediately challengewiped the slate clean. Consideration may not be given to the cumulative effect of a series of decisions that, together, set her pay well below that of every male area manager.Knowingly carrying past pay discrimination forward must be treated as lawful conduct. Ledbetter may not be compensated for the lower pay she was in fact receiving whenshe complained to the EEOC. Nor, were she still employed by Goodyear, could she gain, on the proof she presented at trial, injunctive relief requiring, prospectively, her receipt of the same compensation men receive forsubstantially similar work. The Court’s approbation ofthese consequences is totally at odds with the robustprotection against workplace discrimination Congress intended Title VII to secure. See, e.g., Teamsters v. United States, 431 U. S., at 348 ("The primary purpose of Title VII was to assure equality of employment opportunities and toeliminate . . . discriminatory practices and devices . . . ."(internal quotation marks omitted)); Albemarle Paper Co. v. Moody, 422 U. S. 405, 418 (1975) ("It is . . . the purpose of Title VII to make persons whole for injuries suffered on account of unlawful employment discrimination.").

This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute’s broad remedial purpose. See supra, at 10–12. See also Wards Cove Packing Co. v. Atonio, 490 U. S. 642 (1989) (superseded in part by the Civil Rights Act of 1991); Price Waterhouse v. Hopkins, 490 U. S. 228 (1989) (plurality opinion) (same); 1 B. Lindemann & P. Grossman, Employment Discrimination Law 2 (3d ed. 1996) ("A spate ofCourt decisions in the late 1980s drew congressional fire and resulted in demands for legislative change[,]" culminating in the 1991 Civil Rights Act (footnote omitted)). Once again, the ball is in Congress’ court. As in 1991, the Legislature may act to correct this Court’s parsimoniousreading of Title VII.

I cannot imagine any employee on the first payday of a job being able to substantiate a pay discrimination claim, so the Court's decision was clearly intended to halts enforcement of Title VII. Mark Kirk said "OK by me" and dropped the ball thrown to him by Justice Ginsburg. If you want to live in a country where people can be denied fair pay, go ahead and vote for Mark Kirk, but if you don't want corporations to be able to discriminate against your daughters, you should vote him out of office.

In case your wondering, McCain would probably tell your daughters to get second jobs to pay for corporate discrimination.