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Career Minded

Equal Pay? No Way

A '70s-style bra-burning might not be necessary, but where is the outrage over the Supreme Court's decision to enforce a 180-day time limit on pay-discrimination lawsuits?
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When the Supreme Court ruled last month that employees will now have just 180 days to sue an employer for pay discrimination, I waited for the angry uproar. But all I heard were some unsurprising sound bites from Hillary Clinton and a few other Democrats who said they would fight back legislatively. Where the hell was all the righteous indignation from the women upon whom this ruling will have an impact?

Okay, it’s not like actual bra burning is called for. But come on, ladies, who among us actually thinks she would know within six months of getting a job, raise, or bonus if she were being paid less based on gender? The 5-4 ruling even prompted the only woman justice, Ruth Bader Ginsburg, to read aloud her dissenting opinion, a rare occurrence that signaled her frustration. Ginsburg said the court’s interpretation of Title VII of the Civil Rights Act of 1964 was not “in tune with the realities of the workplace.” That’s an understatement.

Let’s revisit reality for a moment. Women have made great strides, but wage discrimination remains a very big problem. In 2005, median weekly pay for full-time female workers was only 81 percent of what their male counterparts made, according to the latest information from the U.S. Bureau of Labor Statistics. Just days after the court’s ruling, a high-ranking female lawyer for General Electric—a company widely hailed as a leader in facilitating women’s career advancement—sued the firm. The lawsuit accused G.E. of paying female employees in entry-level executive positions less money than their male peers and of failing to promote female executives at a comparable rate. Like the Supreme Court decision, the G.E. case received only a perfunctory amount of press.

It’s not that women in business aren’t upset. One of them is Patricia Sueltz, C.E.O. of SurfControl, an internet-security firm that is in the process of being acquired by Websense for $400 million. Like many of the women I’ve talked to in the past few weeks, she finds the decision “appalling.” As Sueltz puts it, “How on earth would you know” within 180 days if pay disparity was a factor?

Her own experience, working for several large and respected technology organizations that I agreed not to identify for this column, fuels her rancor. Years ago, Sueltz and her husband began working for the same company at the same time, a situation that gave both of them rare, detailed access to coworker salaries and performance reviews. In the beginning, Sueltz’s husband earned $1,000 more per year because, says Sueltz, he had an M.B.A. Fair enough, I say. But over time, Sueltz was promoted faster, and the couple was “at nearly the same pace and got praised the same,” says Sueltz. Even though she and her husband were at the same level, she says, “within three years, he made 17 percent more than I did; within five years or so, he was making 25 percent more.” Sueltz finally broached the issue with a superior: “I said, ‘I am really embarrassed to bring this up because I never talk about salary, but there seems to be a [pay] disparity between me and my husband.’” As she recalls, “He looked me right in the eye, he did not even flinch, and said, ‘That is because you are a woman.’”

Today, few men would admit as much out loud, and even fewer may recognize the gender discrimination—often subconscious but nonetheless insidious—influencing their pay decisions. Bosses often assume they can pay women less because they are not the so-called head of household and therefore don’t need the money as much. According to a 43-year-old executive in the hedge fund sector, who asked not to be identified and who called the ruling irrational, “They think they can pay me less because—and I had it said to me—I am married. Never mind that I am the main breadwinner!”

What’s more, co-worker salaries, which are not always handed out simultaneously, are usually treated as not only confidential but as a taboo subject that’s often dangerous to discuss. So just how does the Supreme Court expect an employee to prove her pay is lower than a colleague’s within a six-month period? Kate Riley, who spent 25 years at I.B.M., MCI, and several internet providers, says people usually learn what someone else makes accidentally, via gossip or a co-worker’s gloating. Even if you do find out, Riley adds, “you could get fired if you talked about what you or other people made.”

Women are not unreasonable: They understand companies need some protections. Ilana Diamond, the chief executive of Sima Products, which provides electronic accessories for Best Buy and Circuit City, says that, as a C.E.O., she knows the law is meant to protect firms like hers from “bogus claims.” Indeed, a statute of limitations is necessary to be fair to employers. But six months? “In my view,” says Diamond, “the ruling was a misapplication of intent of the law.”

From a legal perspective, female attorneys disagree on how much the court’s ruling will hurt women. Debra L. Raskin, a partner at the New York-based labor and employment law firm Vladeck, Waldman, Elias, & Engelhard, insists the ruling is a big deal and will curtail any meaningful salary-discrimination claims brought under Title VII. But lawyer Sara Begley, of Reed Smith, in Philadelphia, which represents employers in discrimination cases, says the court’s opinion does not adversely affect women. According to Begley, even if the 180-day period has passed, women can still file discrimination claims under the Equal Pay Act, which has time limit of two years.

Raskin, on the other hand, says that it “makes no sense” to claim that the two statutes give women equal protection under the law. She argues that in certain cases it is harder to prove discrimination under the Equal Pay Act, since women must show that they are being paid less than a given man with a similar job description and performance. Says Raskin, “Title VII takes into account a whole spectrum of discrimination where you do not have to have a twin.”

In her dissent, Ginsburg wrote, “… the ball is in Congress’ court. As in 1991, the Legislature may act to correct this court’s parsimonious reading of Title VII.” That’s right: It will take an act of Congress to remedy this situation.

 
 

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