09/12/2007 10:05 am ET | Updated Nov 17, 2011

A Peaceful Revolution : Equal Pay for Equal Work? Supreme Court Moves Us Backward

When our son Antonio was about eight years old he asked, "Who makes more money, you or daddy?" I was taken aback and slightly irritated by the question. Two years earlier this little boy expressed great surprise upon learning that men could be lawyers. As the executive director of a women's legal advocacy organization, the only lawyers he saw on any regular basis were the women in our office. It never occurred to me that he associated the job lawyer with women. My spouse is not a lawyer. But back to his "who earns more" question. On the plus side he didn't assume that men earned more. But like the vast majority of women who are employed full-time year round, I do earn less than my husband.

Far too many people (some of them women) think that sex discrimination is a problem of the past. After all, we are 46 percent of the paid work force, and successful women are all around us. Women are gaining admission and graduating from colleges and universities in numbers far greater than men. Elite institutions are seriously worried that more highly "qualified" women applicants are limiting the number of spaces available for male students.

In spite of the enormous gains women have made, the gap between the earnings of men and women has been shrinking at a glacial pace. In 1960 when reporting on the wage gap started the average women worker earned 60 percent of the earnings of the average male worker. Forty-seven years later, the 40 percent wage gap has been reduced to 23 percent. At this rate the wage gap should be eliminated by about 2057. My teenage son's grandchildren should be entering the workforce right about then.

In the book Getting Even: Why Women Don't Get Paid Like Men - and What to Do About It, Evelyn Murphy, an economist and the former Lt. Governor of Massachusetts, quantifies how women and their families are being short-changed by the wage gap. Over the course of her working life, a woman high school graduate will earn $700,000 less than a comparably situated male and a woman college graduate with a starting salary of $30,000 is shorted $1.2 million dollars over her lifetime. For women with degrees in business, law, or medicine with a starting salary of $70,000 their lifetime earnings will be $2 million dollars less than their male classmates.

The recent United States Supreme Court case of Ledbetter v. Goodyear Tire, gives us a birds eye view of how wage disparity starts and how it grows over the course of a woman's career. Lilly Ledbetter began working at the Goodyear Tire Plant in Gadsden, Alabama in 1979. A dozen years after joining the company she was selected to be one of four area managers supervising the section of Goodyear that would produce large radial tires for sport utility vehicles and light trucks.

Ledbetter was the only female supervisor who held this job. Each of the area managers was responsible for supervising a shift of production workers that made tires. Other sections of the plant which produced different types of tires also had area managers. There were 15 male area managers and Ledbetter was the sole female working in this capacity. Initially her salary was in line with the salaries of her male co-workers who performed the same work. During the first four years she served as an area manager, where she supervised a shift of hourly unionized workers that made tires, Ledbetter's boss expressed the view that women did not belong in the company, and certainly not in the type of job she held.

He routinely ranked her towards the bottom (but not lowest ranked) of the supervisors. Annual salary increases for Ledbetter and the other supervisors were based on annual merit compensation system and over time Ledbetter's pay slipped in comparison to that of the male area managers. In 1997 Ledbetter's annual salary was $44,724. The lowest paid male area manager earned 14 percent more than Ledbetter ($51,432) and the highest paid almost 30 percent more ($62,832). Ledbetter, the only women area manager, was paid far less than the men doing the same job.

In 1998 Ledbetter accepted an early retirement offer made by Goodyear, when it announced the downsizing of its Gadsden plant. Several months after leaving Goodyear Ledbetter sued her former employer for sex discrimination. A jury agreed with Ledbetter that Goodyear had discriminated against her when her supervisor set her salary lower than the men doing the same job. They awarded her $224,000 for back pay, $4,600 in mental anguish and almost $3.2 million in punitive damages. Goodyear filed a series of appeals and the case ultimately worked its way to the United States Supreme Court.

Earlier this year the Supreme Court ruled in a 5-4 decision that Lilly Ledbetter was, shall we say, a day late and a dollar short. She was plumb out of luck, when the court held that Title VII required her to have filed a charge of discrimination with the EEOC within 180 days of any of those dates when her supervisor gave her a smaller pay raise because she was a woman. This act of giving her smaller increases, constituted the adverse action that required her to take action. That Ledbetter had no knowledge back then that her employer was paying her less was simply not considered. The court rejected Ledbetter's argument that her claim was viable because each paycheck she received that reflected the effects of past pay discrimination triggered a new charging period for purposes of filing her complaint of discrimination. Most courts and the EEOC have decided Title VII cases consistent with the position set forth by Ledbetter.

The sole woman on the Supreme Court Justice Ruth Bader Ginsburg wrote the dissent, which she read from the bench, in which she criticized the majority opinion because it ignores workplace reality and "overlooks common characteristics of pay discrimination." That reality is that most workers do not know what their peers are paid and that even when they learn of small discrepancies it's just too risky to make waves. This is especially the case where a worker is swimming against the tide trying to succeed in a nontraditional environment, where the workers very presence is often viewed with hostility.

Justice Ginsburg noted that over the course of a whole career, even a small disparity in pay expands exponentially when raises are set, as they usually are, as a percent of the prior pay. These practices rob the injured worker of many thousands of dollars in wages, and also lower pension benefits that are linked to the amount of pay a worker earns. This is a problem not just for women but others who are systematically and deliberately paid less for the same work, for example that lone person of color in a lily-white corporate job.

The minority opinion called upon Congress to pass remedial legislation overturning the Supreme Court's decision. Lilly Ledbetter testified at the congressional hearing where she explained that it took more than 15 years to confirm her suspicion that she was being paid less. The first bit of evidence was an anonymous note from someone listing her pay and that of the three other male area managers in her production unit. Confirmation of these pay discrepancies were only confirmed as a result of the litigation.

The House of Representatives passed the Ledbetter Fair Pay Act of 2007 which clarifies that the time limit for suing employers for pay discrimination begins each time an employer issues a paycheck, reflecting past discrimination, not when the employer initially commits the alleged discriminatory act. The act still needs to be passed in the Senate and then signed by the president. No small feat.

Let your elected representative know that you support The Ledbetter Act. And add your name to the petition started by MomsRising here. The wage gap is alive and well. From Wal-Mart to Wall Street women are persistently paid less than men for doing the same work. We need more, not less protection to keep chipping away at the wage gap.