September 5 2012
National Review Online | The Corner
Carrie L. Lukas
Lilly Ledbetter was an effective convention speaker, and conservatives need to address this issue head on.
Americans naturally sympathize with a woman who was treated unfairly by her employer. Yet voters need to understand that the actual policies advanced in the Ledbetter Act and in other measures, such as the Paycheck Fairness Act, being advanced under the banner of greater fairness, have the potential to backfire on employees, particularly women.
First, it’s important to understand what the Ledbetter Act actually did: It changed the statute of limitations so that, rather than having a 180-day window to sue after an employment decision, the clock now restarts after any payment made in relationship to that decision.
Such time limits are, by their nature, arbitrary. The original 180-day limit was arguably too short, and didn’t allow enough time for employees to discover discrimination and take action.
However, there are real, very significant problems associated with extending the time limit so that employees can sue years, even decades, after employment agreements are made. After years pass, the parties involved in employment decisions are often long gone. Memories fade and records aren’t always properly preserved. When someone sues an employer (particularly a smaller employer) years after being hired for a job, the costs aren’t borne by those responsible for any acts of discrimination, but by those workers, managers, and stockholders who are now involved with the company.
The new regime created by the Ledbetter Act is certain to encourage more litigation, including frivolous lawsuits whose chief beneficiaries are trial lawyers. It’s unclear, however, if it will actually lead to greater justice or more equitable treatment for employees.
Current employees (and the unemployed who will find fewer job opportunities available) bear the greatest burden from a more litigious work environment. Companies facing an increased potential for litigation will have an incentive to try to minimize their exposure to lawsuits: That means they will try to hire fewer employees (particularly employees who could be litigious) and create more uniform compensation practices, which can be bad news for women who often value and benefit from greater flexibility. The money spent on lawyers and fighting in court is money that can’t be used to hire other workers or give raises.
Americans worried about worker treatment should keep in mind that equal pay for equal work is, and has long been, the law of the land. The question now is about how to balance the need for employees to be able to seek redress for wrongdoing and to prevent costly or frivolous lawsuits that hurt employers and discourage job creation and economic growth.
Ultimately, the question is: Do voters really think that more litigation is going to improve the prospects for American workers?
It’s also worth noting that Ledbetter — like countless politicians and feminist activists before her — implies that the entire statistical difference between men and women’s average earnings is a result of discrimination. It isn’t, and it’s a disservice to women to continue to push this tired line and to try to convince us that we are all victims.