Why the Law Should Intervene to Disrupt Pay-Secrecy Norms: Analyzing the Lilly Ledbetter Fair Pay Act through the Lens of Social Norms

This Note addresses the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co. and the subsequent legislative response, the Lilly Ledbetter Fair Pay Act (LLFPA). Through the LLFPA, Congress overrode the Ledbetter decision and enacted a paycheck-accrual rule for Title VII pay-discrimination cases, the purpose of which is to provide victims a longer - and more realistic - statute of limitations for pay-discrimination claims. This Note explores the congressional justifications for the LLFPA and the workings of pay-discrimination claims, and argues that the legislation does not address all of the obstacles that prevent victims from effectively challenging pay discrimination because the statute's goals are frustrated by social norms of pay secrecy. This Note argues for a transformative legal intervention to enable Title VII to remedy all instances of pay discrimination.I. INTRODUCTIONThe gap between male and female earnings is striking: Department of Labor statistics show that, on average, a woman who works full-time makes only seventy-seven to eighty cents on the dollar as compared to a similarly situated man.1 While there are many causes for this striking discrepancy, discrimination in the workplace is one of them.2 Employment discrimination with respect to . . . compensation, terms, conditions, or privileges of employment . . . because of sex is illegal under Title VII of the Civil Rights Act of 1964,3 but recognizing, challenging, and remedying illegal pay discrimination under Title VII is far more difficult than appreciating that pay inequality is a widespread societal problem.The pay gap is present in all sectors of the United States economy, and in all fields.4 Although many critics dismiss the pay gap as the result of individual female choices (for example, the socalled choice to take time off from the labor market after having a baby or to work fewer hours due to family responsibilities) or market forces,5 statistical and economic studies confirm that the pay gap cannot solely be attributed to choices made by employees.6 Rather, a significant portion of the gap is unexplained by either market forces or individual choices and is likely caused by pay discrimination by employers.7 Although the pay gap began to shrink after the passage of the Equal Pay Act in 19638 and Title VII of the Civil Rights Act of 1964, the gap persists and the pace at which it shrinks has slowed since the 1990s.9During the second presidential debate in October 2012, the candidates were asked about the gender pay gap.10 President Obama responded by highlighting that the first bill that he signed as President was the Lilly Ledbetter Fair Pay Act (LLFPA).11 Further, President Obama, referring either to the Ledbetter v. Godyear Tire and Rubber Co., Inc. decision (which held that the charging period for a Title VII pay-discrimination claim begins when the challenged compensation decision is made by the employer, and does not restart anew after each paycheck is issued) specifically or to pay inequality generally, stated so, we fixed that.12This response is representative of the popular narrative surrounding the LLFPA, which regards the Act as an expansive and novel legislative solution to the pay gap.13 The LLFPA is a direct legislative response to a Supreme Court decision that had created a nearly insurmountable procedural hurdle for many plaintiffs challenging pay discrimination under Title VII.14 Congress passed the LLFPA to amend Title VII to provide employees a realistic avenue to bring claims of pay discrimination within the relevant charging period.15 But the mechanics of the LLFPA, and pay-discrimination lawsuits generally, analyzed below, show that the LLFPA is only a partial remedy and cannot be expected to entirely eliminate pay inequality.16Because pay inequality is incredibly pervasive, it necessarily requires a sweeping, transformative legal intervention. Such an intervention must get at the root of the problem in order to be truly effective: it must disrupt and reconstitute the widespread social norms that shroud pay in secrecy. …