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Paying fair

State lawmakers should seize an opportunity to correct a flaw in gender-discrimination law.

August 26, 2008

A bill to restore to women (and men) the right to fully recover damages for gender-based pay discrimination got stuck in the U.S. Senate earlier this year, but California has an opportunity to move forward with a corrective measure of its own. Unfortunately, that bill too -- AB 437 by Assemblyman Dave Jones (D-Sacramento) -- is in danger of being blocked by critics who brand it a job killer.

That's absurd. Jones' bill simply makes clear that under state labor and fair-employment laws, an oddly reasoned 2007 U.S. Supreme Court decision interpreting federal law does not apply.

And it shouldn't. The 5-4 decision in Ledbetter vs. Goodyear Tire and Rubber Co. undermined Title VII of the Civil Rights Act of 1964 by impossibly restricting the period during which a victim of unlawful discrimination can try to get full compensation. The employee has to know she's being discriminated against (most victims are women) and must file within 180 days of the gender-based decision to pay her less than men in the same job. If she discovers the unequal treatment only after it has been perpetrated for years, it's too late. A career's worth of inequity turns into less than half a year's worth of compensation.

The state bill already has been pared down to remove language that would have clarified how and when to file an action under California law to recover damages for gender pay discrimination; as presently worded, it would simply make clear that the Ledbetter reasoning is the wrong model for interpreting state labor law.

Some business interests are hoping that state courts will back away from decades of California's employment rights leadership and instead duplicate the unearned boon that the Ledbetter case gave them. That's a mistake. In the long run, willful discrimination does not create a terrific business climate.

As it happens, Lilly Ledbetter, the plaintiff in the case, has become something of an icon for Democrats. She is scheduled to address the party faithful in Denver today, on the anniversary of the constitutional amendment giving women the right to vote.

It's hard to blame Democrats for squeezing as much partisan energy out of the wrongheaded ruling as they can. But combating gender discrimination in the workplace need not be a partisan issue. Democrats in Sacramento may be wishing they were in Denver, just as next week Republicans may be pining for the Twin Cities, but they have a job to do at home. They should adopt a budget, and they should send AB 437 to the governor for his signature.

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