The Absurdity of the Lilly Ledbetter Fair Pay Act
The first bill that Obama signed into law is the Lilly Ledbetter Fair Pay Act of 2009. The bill is designed to plug “holes” in the Civil Rights Act, Age Discrimination in Employment Act and the American’s with Disabilities Act, namely in the requirement that people sue within 180 days of the unlawful discrimination occurring.
The very premise of this law should warn people that the law is a bad one; usually victims are aware that they have been victimized, which is clearly not the case with the actions the law seeks to criminalize. This law attempts to protect people who arbitrarily, possibly years after the fact, decide that a contract they accepted was suddenly unacceptable.
Good laws, ones that attempt to criminalize acts which harm or injure a victim don’t need such a clause. A victim of assault and battery, for example, will become immediately aware that he or she has been attacked. A person who is the victim of fraud can pinpoint when the other party failed do to satisfy their contractual obligations. While on occasion, it may take years for the fraud to manifest itself, inevitably, the victim becomes aware of the fraud and can point to the contractual violation that took place.
The case of Lilly Ledbetter, after whom the law was named, shows the absurdity of the law very plainly. Lilly Ledbetter worked for Goodyear. Over the course of many years, they offered her an employment contract that paid her far less than contracts made with men performing the same or similar duties. At the time, she voluntarily accepted the contracts, clearly meaning that she thought the salary was an acceptable payment for her services. As she neared retirement, she became aware of the fact that male coworkers were paid more generously and sued on the grounds that she was the victim of unlawful discrimination.
Interestingly, had Lilly Ledbetter’s male coworkers been paid salaries that were approximately equal to hers, under the law she would not be a victim. This highlights the bizarre nature of discrimination law. Compare this law to laws governing assault. If a person assaults someone, how many other people were assaulted, how consistently the attacker assaults people he comes in contact with are absolutely irrelevant to the question of whether or not a crime has been committed. Under such a rubric, we could argue that Ted Bundy wasn’t really a murderer, after all he killed nearly every woman he picked up, thereby not unfairly signaling out any one of his victims for unusually harsh treatment.
Odds are that any person, at some point in their lives, will regret some contract they entered into willingly that seemed like a good idea beforehand. The notion that the law can punish the other party after the fact for fulfilling the terms of an agreement that was freely entered is dangerous; it assumes that society is improved by making the legal system more arbitrary and capricious.
The authors of this law claim that it will improve commerce by making commercial transactions more orderly. Nothing can be further from the truth. This law makes the decision to employ members of protective classes to be quite perilous. Under this law, a person can work for a company for decades, and then turn around an sue the company for discrimination and be awarded decades of back pay. It will, if anything, make businesses more reluctant to hire women, minorities, disabled or gays or any of the other protected groups that the law seeks to protect.
The law is also unconstitutional, not only because it depends on an incorrectly expansive reading of the General Welfare clause, but also because the law appears to be retroactive (to me anyway).
While I applaud the goals of the law, to expand the options available to women, minorities, the disabled etc, this law is very counterproductive. The bargaining power of workers is enhanced when they can more easily switch jobs and employers have to compete for the labor they hire. When the government intervenes in the labor market by making employing certain people more risky, they are in effect making those laborers less attractive to people who are considering buying their labor services. In short, this law will hurt women, hurt minorities, hurt the disabled, etc. It is, in short, an own goal.