Texas State Capitol building in Austin. Courtesy image.
Texas State Capitol building in Austin. Courtesy image.

In recent weeks there has been much ado about the stance of Texas’ gubernatorial candidates on the issue of pay equity for men and women. Senator Wendy Davis’ focus on pay discrimination has caused a ripple effect around the issue. Meanwhile, Attorney General Greg Abbott’s campaign has stumbled in its response to criticism that his office underpays female assistant attorneys in comparison with men in the same position. Abbott has said he would veto equal pay legislation.

Governor Rick Perry, who less than a year ago vetoed an equal pay bill passed by the Republican-controlled Legislature, chimed in, declaring the concern over equal pay for women to be “nonsense.”

President Obama recently signed an executive order protecting employees working for federal contractors who opt to discuss their compensation, and issued a memorandum to his Secretary of Labor designed to allow data collection of pay information based on race and gender. The announcements came on “Equal Pay Day,” which publicized the statistic, based on U.S. Census data, that women on average earn only 77 cents on the dollar in comparison to men in the same positions—a figure which Republicans promptly disputed, citing a Pew Research study.

President Barack Obama signs executive actions to strengthen enforcement of equal pay laws for women, at an event marking Equal Pay Day, in the East Room of the White House, April 8, 2014. Official White House Photo by Pete Souza.
President Barack Obama signs executive actions to strengthen enforcement of equal pay laws for women, at an event marking Equal Pay Day, in the East Room of the White House, April 8, 2014. Official White House Photo by Pete Souza.

Battle lines on the issue were drawn when the U.S. Senate proposed the Paycheck Fairness Act, which would challenge companies to become compliant with the ideal of equal pay by granting aggrieved individuals greater access to the courts while imposing stiffer financial penalties for offending employers.  The bill fell short of the 60 votes necessary for passage. Democrats bemoaned the loss of pay equity protection for women. Republican Senate Minority Leader Mitch McConnell dismissed the legislation as unnecessary calling the effort a “never-ending political road show.”

A more detailed look at the evolution of equal pay through the courts and state/federal legislatures allows us to see how the issue has developed and why it has landed a spot on center stage as a key issue of the day.

Origins of Protections from Pay Discrimination in the U.S. and Texas

Two federal statutes provide remedies for pay discrimination. The Equal Pay Act was the first law to prohibit gender discrimination as expressed through pay. Enacted under President John F. Kennedy in 1963 as an amendment to the Fair Labor Standards Act, its elements were repeated and expanded through its incorporation into Title VII of the Civil Rights Act of 1964 under President Lyndon B. Johnson. Both laws set out parameters for legitimate discrepancies in pay such as seniority, merit, quantity or quality of production, or other areas not based on gender, race, and other protected categories.

The United States Supreme Court Building. Public domain photo.
The United States Supreme Court Building. Public domain photo.

In 1971 the U.S. Supreme Court in its first sex discrimination Title VII case vacated and remanded the Fifth Circuit Court of Appeals decision for an employer who had discriminated against a potential female employee because she had a preschool age child. The court’s majority opinion, the concurring opinion, and the lower court’s dissenting opinion demonstrate the shift in attitude about American women at work which was occurring at that time.

Although the Supreme Court ruling granted relief to the female applicant, the majority opinion cautioned that upon rehearing the trial court should consider that “a ‘bona fide occupational qualification reasonably necessary to the normal operation of’ Martin Marietta’s business could be established by a showing that some women…with pre-school-age children have family responsibility that interfere with job performance and that men do not usually have such responsibilities.”

Justice Thurgood Marshall, in his concurring opinion, countered the court’s reasoning, observing that “even characterizations of the proper domestic role of the sexes were not to serve as predicates for restricting employment opportunity.

“The exception…,” Marshall explained, “was not intended to swallow the rule.” In the dissent of the court below, upon denial of rehearing en banc, or the full court, Chief Judge Brown stated, “A mother is still a woman. And if she is denied work outright because she is a mother, it is because she is a woman. Congress said that could no longer be done.”

By 1972 the EPA was further amended to protect against gender-related pay discrimination in salaries of exempt workers such as executives, administrative staff, and professionals.  And in 1973 the Supreme Court prohibited sex-designated classified advertising for job opportunities.

In Texas, in 1983, Governor Mark White signed the Texas Commission on Human Rights Act (TCHRA).  The Act, which is now found in Chapter 21 of the Texas Labor Code, primarily “provide[s] for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments,” including the EPA. 

21st Century Evolution of Challenges to Pay Discrimination 

So, one might ask, “What more is needed?”  Enter Lilly Ledbetter, who in 1998 filed a lawsuit alleging that her employer, Goodyear Tire & Rubber Company, had engaged in systematic pay discrimination against her for her entire career from 1979 to 1998 as a female production supervisor among male supervisors at a tire plant in Alabama.  (Ledbetter’s  final pay was about 76% of the median pay of her male counterparts.)  In 2007 the U.S. Supreme Court decided in a 5-4 vote that the statute of limitations for Ledbetter’s claim had indeed expired with the passage of 180 days following the initial discriminatory wage decision in her case, and that the discrimination was not renewed with the issuance of each paycheck which followed from that wage decision.  Even though Ledbetter had not known of the discrimination until late in her career, the Court ruled that there was nothing to be done about it.

Justice Ruth Ginsburg
Justice Ruth Ginsburg

Justice Ruth Ginsburg in her dissent makes a number of distinctions between discrete occurrences which clearly had fallen under the statute of limitations, and pay discrimination, which has other characteristics.  Her dissent stated:

“The Court’s insistence on immediate contest overlooks common characteristics of pay discrimination. Pay disparities often occur, as they did in Ledbetter’s case, in small increments; cause to suspect that discrimination is at work develops only over time.

Comparative pay information, moreover, is often hidden from the employee’s view. Employers may keep under wraps the pay differentials maintained among supervisors, no less the reasons for those differentials. Small initial discrepancies may not be seen as meet for a federal case, particularly when the employee, trying to succeed in a nontraditional environment, is averse to making waves.

Pay disparities are thus significantly different from adverse actions “such as termination, failure to promote, … or refusal to hire,” all involving fully communicated discrete acts, “easy to identify” as discriminatory.

It is only when the disparity becomes apparent and sizable, e.g., through future raises calculated as a percentage of current salaries, that an employee in Ledbetter’s situation is likely to comprehend her plight and, therefore, to complain.Her initial readiness to give her employer the benefit of the doubt should not preclude her from later challenging the then current and continuing payment of a wage depressed on account of her sex.

Ginsburg goes on to cite important precedent for considering the delivery of a paycheck based on discrimination as an occurrence of an unlawful employment practice, and thus an ongoing offense. This view, she says, is “more in tune with the realities of the workplace, and more respectful of Title VII’s remedial purpose.”

She further likens pay disparities of the Ledbetter ilk as having “a closer kinship to hostile work environment claims than to charges of a single episode of discrimination. Ledbetter’s claim…rested not on one particular paycheck, but on ‘the cumulative effect of individual acts.’ ” Ginsburg suggests that, as in the past, it would now be up to the Legislature to correct the situation.

Influence of Ledbetter on a Texas Claim

On the heels of the Ledbetter decision, in late 2007 a professor at Prairie View A&M (near Houston) filed suit in Waller County against her employer for race based pay discrimination under the TCHRA.  In 2004 longtime employee Dr. Diljit Chatha received a promotion without an appropriate salary adjustment.  Upon complaining to the University she was told there were no funds available to increase her pay.  Two years later, Chatha administratively pursued the matter through the Equal Employment Opportunity Commission (EEOC) and Texas Workforce Commission (TWC), and eventually through her lawsuit.

As Chatha tried her suit, the Supreme Court’s Ledbetter decision was followed in approximately 300 federal decisions.  Earlier that summer, a bill similar to the ultimate Ledbetter Fair Pay Act fell just short of passing, although President George Bush had said he would veto if it did pass.

Lilly Ledbetter will never receive restitution from Goodyear, but she said, "I'll be happy if the last thing they say about me after I die is that I made a difference." Pictured: Lilly Ledbetter stands with President Barack Obama, who signed into law the first new law of his administration on on Jan. 29, 2009: the Lilly Ledbetter Fair Pay Act. Courtesy photo.
Lilly Ledbetter will never receive restitution from Goodyear, but she said, “I’ll be happy if the last thing they say about me after I die is that I made a difference.” Pictured: Lilly Ledbetter stands with President Barack Obama, who signed into law the first new law of his administration on Jan. 29, 2009: the Lilly Ledbetter Fair Pay Act. Courtesy photo.

Congress eventually passed the Lilly Ledbetter Fair Pay Act in 2009, and President Barack Obama, in his first act as Chief Executive, gave effect to it as an amendment to the Civil Rights Act.  The Act finally allowed the 180-day statute of limitations for filing an equal pay lawsuit to reset with each new paycheck affected by a discriminatory action.

In Chatha, the trial court then awarded her victory in the suit, citing the continuing violation recognized by the Ledbetter Act, based on her claim that her most recent paycheck was a link in a pattern of discriminatory behavior, and that she had therefore timely filed her suit against her employer. Chatha’s timely claim was affirmed on appeal, with the appeals court concluding that the treatment of the statute of limitations under the Ledbetter Act (now a part of Title VII of the Civil Rights Act) applied under the TCHRA since the Texas Act was formed to mirror Title VII.  However in 2012, in a dramatic appeal to the Texas Supreme Court, the court ultimately reversed finding that although the U.S. “Congress ha[d] created an exception in the Ledbetter Act for pay discrimination claims brought under Title VII; the Texas Legislature ha[d] not.”

Pay Discrimination Law in Texas Today

Today, as illustrated by Chatha, we are left in Texas with incongruence between federal and state law as it relates to pay discrimination.  Both Title VII and the TCHRA provide some degree of protection from pay discrimination. However, as shown by history, pay discrimination issues continue to be resolved through refinement in the dialog between court decisions and legislative activity.  Advocates of further legislation to the TCHRA would amend it to parallel the Ledbetter Act. Critics claim that further legislation will give rise to additional litigation and that discrimination on the basis of sex is already illegal.

Recently, Sen. Senfronia Thompson authored a Texas amendment to the TCHRA designed to mirror the recent amendment to Title VII.  House Bill 950, championed by Republican and Democratic legislators, was introduced in February and, like the Ledbetter Fair Pay Act, allows for a continuing violation, tolling the 180 day statute of limitations each time wages are distributed under discriminatory circumstances.  The Bill, passed in May 2013 by a bipartisan Texas Congress, was vetoed by Governor Rick Perry a few weeks later.

The lack of agreement between state and federal pay discrimination laws, especially in the face of cases like Ledbetter and Chatha, raises important questions about how women in Texas will fare in the face of pay discrimination, which sometimes goes unnoticed for some time before detection.  Additionally, the current disfavorable treatment of pay discrimination claims in Texas as compared to federal law discourages the bringing of suits in Texas, and pushes litigation to the federal level.

The higher cost of federal litigation in itself causes a disparity in the ability of those in lower socio-economic positions to bring their claims of discrimination.  Whether equal pay will become more available through the upcoming election process remains to be seen, but Texas men and women are certainly in a position to influence the process through their votes.

Elise Urrutia
Elise Urrutia

Elise Urrutia works with Dawn as paralegal, is a long-time San Antonian, and writes on a variety of topics including law, history, art, and music.  She is currently working with her father on a project exploring their family’s life in San Antonio and contributed to this article.

*Featured/top image: Photo by Jack via Compfight.

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Dawn Bruner Finlayson

Dawn Bruner Finlayson is a partner with Barton, East and Caldwell, PLLC. She is Board Certified, Labor and Employment Law, Texas Board of Legal Specialization, and often writes and speaks on a variety...