Vermont Bar Journal
Spring 2008 - #7.
Can I See Your Paycheck? Achieving Pay Equity in Vermont Employer or Employee Responsibility
THE VERMONT BAR JOURNAL #173, Volume 34, No. 4 SPRING 2008
Can I See Your Paycheck? Achieving Pay Equity in Vermont Employer or Employee Responsibility?by Sandra W. Everitt, Esq.Once again the numbers are in. Vermont's working women, whether full-time, part-time, or college-educated, make less than Vermont's working men.(fn1) Setting aside statistics, and discussions about job duties and parental leave, I would like to offer information for reflection and discussion on whose responsibility it is to achieve and ensure pay equity in the workplace. We all know employees have the right to earn equal pay for comparable work not based on their sex.(fn2) But do employers or employees bear the responsibility for ensuring this legal right? In May 2007, the
U.S. Supreme Court issued its Ledbetter(fn3) decision, striking a blow for employees bringing wage disparity claims under Title VII of the Civil Rights Act of 1964.(fn4) Title VII is the federal law that prohibits discrimination in employment on the basis of race, color, sex, national origin, and religion.(fn5) The Supreme Court ruled that Ms. Ledbetter had missed the filing deadline to bring her sex wage discrimination claim by waiting to file her claim until the cumulative effect of a discriminatory pay decision became known to her years later. Ms. Ledbetter worked for nineteen years as one of the few female supervisors for Goodyear Tire in Gadsden, Alabama. She established at trial that several supervisors had initially given her poor evaluations because of her gender, and as a result she received lower raises than her male co-workers. The initial pay discrepancies were small, but over time successive percentage-based pay adjustments, based on the initial discriminatory bias, resulted in a substantial pay discrepancy. When she finally realized that her male co-workers performing comparable work were receiving significantly more pay, Ms. Ledbetter filed and proved her claim. However, the Supreme Court, in a 5-4 decision, reversed the lower court verdict in her favor because Ms. Ledbetter did not discover the discrepancy and file her claim within 180 days of the time the gender-based wage decisions were initially made. According to the majority, the employer, Goodyear, did not bear any responsibility for ensuring a workplace free of pay decisions made on the basis of gender bias or free from pay equity violations. Instead the sole burden and responsibility rests on the employee to determine when pay bias may be occurring and then to file a claim in a timely manner. In her dissenting opinion Justice Ginsburg noted the dilemma faced by individuals in most pay discrimination cases: "Pay disparities often occur . . . in small increments; cause to suspect that discrimination is at work develops only over time."(fn6) The Supreme Court's ruling effectively forces employees either to forego their claim because evidence is insufficient or to gamble and file a claim based on a hunch. The requirement to use the time of the initial discriminatory act, regardless of how difficult it may be to discover, instead of finding a continuing violation on the issuance of each subsequent paycheck, squarely shifts the pay equity burden to the employee and minimizes the responsibility of the employer to discover...