Ledbetter Act Is First Victory in a Looming Battle

Daphne Eviatar

Passage of the Lilly Ledbetter Act is a victory for workers, but more significant pay discrimination protections are still in Congress.

While it may have looked symbolic and easy, President Obama’s signing of the Ledbetter Fair Pay Act
today was a bold move signifying a renewed interest in the welfare of
employees, at a time when Congress and the new administration is under
strong pressure to focus on the economic concerns of big businesses
instead.

Business groups have spent millions lobbying against the Ledbetter
bill, which allows women who were discriminated against to sue their
employer as long as the discrimination continues:  in other words, if a
female employee was being paid less than a man doing the same job for
the last five years, she can sue for pay discrimination as long as
she’s still being paid less.  She can only receive damages going back
two years, though.  Employers’ groups have argued that’s still unfair,
complaining that it’s too difficult to defend an employment decision
from five years ago.

But even more significant are a few other pieces of legislation that may be coming down the pike:

The first is the Paycheck Fairness Act,
which would lift the cap on punitive and compensatory damages that
currently exist in Equal Pay Act cases. That means a jury would decide
how much the employer owes the employee who was being discriminated
against, instead of the law arbitrarily imposing a limit. It would also
allow employees to more easily include others in their class action
claims, when a group of people — say, all women working at a checkout
counter — are discriminated against similarly.

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Then, there’s the Civil Rights Act of 2008
— which could be introduced as the Civil Rights Act of 2009 — that
would more broadly lift those damages caps on all employment
discrimination claims. Right now, there’s a $300,000 limit imposed by
law.

Employment defense lawyers tell me that their clients are already
working hard behind the scenes to keep that legislation from coming to
the floor for a vote. Though they succeeded in rallying staunch
Republican opposition to the Ledbetter Act, a Democratic Congress
passed it anyway.

Employee advocates will have to push back hard if they’re going to win these battles.

Commentary Politics

In Mike Pence, Trump Would Find a Fellow Huckster

Jodi Jacobson

If Donald Trump is looking for someone who, like himself, has problems with the truth, isn't inclined to rely on facts, has little to no concern for the health and welfare of the poorest, doesn't understand health care, and bases his decisions on discriminatory beliefs, then Pence is his guy.

This week, GOP presumptive presidential nominee Donald Trump is considering Mike Pence, among other possible contenders, to join his ticket as a vice presidential candidate.

In doing so, Trump would pick the “pro-life” governor of a state with one of the slowest rates of economic growth in the nation, and one of the most egregious records on public health, infant and child survival, and poverty in the country. He also would be choosing one of the GOP governors who has spent more time focused on policies to discriminate against women and girls, LGBTQ communities, and the poor than on addressing economic and health challenges in his state. Meanwhile, despite the evidence, Pence is a governor who seems to be perpetually in denial about the effects of his policies.

Let’s take the economy. From 2014 to 2015, Indiana’s economic growth lagged behind all but seven other states in the nation. During that period, according to the U.S. Department of Commerce, Indiana’s economy grew by just 0.4 percent, one-third the rate of growth in Illinois and slower than the economies of 43 other states. Per capita gross domestic product in the state ranked 37th among all states.

Income inequality has been a growing problem in the state. As the Indy Star reported, a 2014 report by the United States Conference of Mayors titled “Income and Wage Gaps Across the US” stated that “wage inequality grew twice as rapidly in the Indianapolis metro area as in the rest of the nation since the recession,” largely due to the fact “that jobs recovered in the U.S. since 2008 pay $14,000 less on average than the 8.7 million jobs lost since then.” In a letter to the editor of the Indy Star, Derek Thomas, senior policy analyst for the Indiana Institute for Working Families, cited findings from the Work and Poverty in Marion County report, which found that four out of five of the fastest-growing industries in the county pay at or below a self-sufficient wage for a family of three, and weekly wages had actually declined. “Each year that poverty increases, economic mobility—already a real challenge in Indy—becomes more of a statistical oddity for the affected families and future generations.”

In his letter, Thomas also pointed out:

[T]he minimum wage is less than half of what it takes for a single-mother with an infant to be economically self-sufficient; 47 percent of workers do not have access to a paid sick day from work; and 32 percent are at or below 150 percent of the federal poverty guidelines ($29,685 for a family of three).

Despite the data and the struggles faced by real people across the state, Pence has consistently claimed the economy of the state is “booming,” and that the state “is strong and growing stronger,” according to the Northwest Indiana Times. When presented with data from various agencies, his spokespeople have dismissed them as “erroneous.” Not exactly a compelling rebuttal.

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As a “pro-life” governor, Pence presides over a state with one of the worst infant mortality rates in the nation. Data from the Indiana State Department of Health reveals a “significant disparity” between white and Black infant mortality rates, with Black infants 1.8 times more likely to die than their white counterparts. The 2013 Infant Mortality Summit also revealed that “[a]lmost one-third of pregnant women in Indiana don’t receive prenatal care in their first trimester; almost 17% of pregnant women are smokers, compared to the national rate of 9%; and the state ranks 8th in the number of obese citizens.”

Yet even while he bemoaned the situation, Pence presided over budget cuts to programs that support the health and well-being of pregnant women and infants. Under Pence, 65,000 people have been threatened with the loss of  food stamp benefits which, meager as they already are, are necessary to sustain the caloric and nutritional intake of families and children.

While he does not appear to be effectively managing the economy, Pence has shown a great proclivity to distract from real issues by focusing on passing laws and policies that discriminate against women and LGBTQ persons.

He has, for example, eagerly signed laws aimed at criminalizing abortion, forcing women to undergo unnecessary ultrasounds, banning coverage for abortion care in private insurance plans, and forcing doctors performing abortions to seek admitting privileges at hospitals (a requirement the Supreme Court recently struck down as medically unnecessary in the Whole Woman’s Health v. Hellerstedt case). He signed a “religious freedom” law that would have legalized discrimination against LGBTQ persons and only “amended” it after a national outcry. Because Pence has guided public health policy based on his “conservative values,” rather than on evidence and best practices in public health, he presided over one of the fastest growing outbreaks of HIV infection in rural areas in the United States.

These facts are no surprise given that, as a U.S. Congressman, Pence “waged war” on Planned Parenthood. In 2000, he stated that Congress should oppose any effort to recognize homosexuals and advocated that funding for HIV prevention should be directed toward conversion therapy programs.

He also appears to share Trump’s hatred of and willingness to scapegoat immigrants and refugees. Pence was the first governor to refuse to allow Syrian refugees to relocate in his state. On November 16th 2015, he directed “all state agencies to suspend the resettlement of additional Syrian refugees in the state of Indiana,” sending a young family that had waited four years in refugee limbo to be resettled in the United States scrambling for another state to call home. That’s a pro-life position for you. To top it all off, Pence is a creationist, and is a climate change denier.

So if Donald Trump is looking for someone who, like himself, has problems with the truth, isn’t inclined to rely on facts, has little to no concern for the health and welfare of the poorest, doesn’t understand health care, and bases his decisions on discriminatory beliefs, then Pence is his guy.

Analysis Politics

New Hampshire Sen. Kelly Ayotte’s Record on Women’s Health at Center of Heated Race

Ally Boguhn

Sen. Kelly Ayotte's defenders have made claims about her commitment to "strengthening women's health" through action on various measures; reproductive rights advocates point out, however, that most of these measures would have done more harm than good.

The tight race between incumbent Sen. Kelly Ayotte (R-NH) and challenger Gov. Maggie Hassan (D) could help determine which party takes control of the U.S. Senate after the November elections. In recent months, a key point of contention has emerged among Ayotte’s supporters and critics: the senator’s record on reproductive rights and women’s health.

Planned Parenthood Votes released an ad in April claiming Ayotte is “bad for New Hampshire women,” signaling the continuation of the heated narrative in the lead-up to the election. Ayotte’s defenders have responded to the accusations with claims of her commitment to “strengthening women’s health” through action on various measures; reproductive rights advocates point out, however, that most of these measures would have done more harm than good.

“For months, Senator Kelly Ayotte has followed party bosses, refusing to fill the Supreme Court vacancy. And for years, Ayotte has waited for an opportunity to push for someone to end access to safe, legal abortion and overturn Roe v. Wade,” claims the Planned Parenthood Votes ad, before playing an August 2010 clip of Ayotte advocating for the Supreme Court to overturn Roe. “For New Hampshire women, the consequences of letting Kelly Ayotte play politics with the Constitution could last a lifetime.”

The $400,000 ad buy, slated to run on broadcast and cable in New Hampshire, has been Planned Parenthood Votes’ first on-air ad targeting a Senate race in the 2016 election cycle. The organization, a national independent expenditure political committee, is criticizing Ayotte for claiming to protect women but failing to protect reproductive rights, also drawing on her pledge to obstruct filling the vacant Supreme Court seat in the aftermath of Justice Antonin Scalia’s death.

“Kelly Ayotte may try to paint herself as pro-woman, but her record tells a very different story. Every chance she’s gotten she’s voted to ‘defund’ Planned Parenthood and cut women off from essential health care like birth control and breast and cervical cancer screenings,” said Deirdre Schifeling, executive director of Planned Parenthood Votes, in a statement on the organization’s new ad. “She has been advocating for years to ban women’s access to safe, legal abortion, and it’s clear she now sees her chance in the Supreme Court process. Kelly Ayotte is refusing to do her job, and abdicating her constitutional duty, in order to push an extreme agenda that no one in New Hampshire wants.”

Ayotte’s campaign manager, Jon Kohan, meanwhile, defended the senator’s record on women’s health and rights in a press release. He wrote, “Kelly’s long record of standing up for New Hampshire women and families is clear, and she cares deeply about ensuring all women have access to health services.” The release included a bulleted list providing examples of Ayotte’s work “strengthening women’s health care,” “supporting working women,” and “protecting domestic or sexual assault victims.”

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The claims may be familiar to those following the New Hampshire race. After Hassan announced her candidacy in October, for example, One Nation, an issue-advocacy organization that does not need to disclose where their funding comes from and is affiliated with Karl Rove’s American Crossroads super PAC, pushed a 17-day, $1.4 million ad campaign touting Ayotte’s record on women’s health.

Hassan, on the other hand, has the support of organizations such as EMILY’s List, whose stated mission is to help elect pro-choice women into office. After endorsing the governor in the Senate race, the group added Ayotte to its “On Notice” list for “voting for anti-woman legislation and standing in the way of policies that give working families a fair shot.”

But with both sides of the race simultaneously claiming opposing positions on whether Ayotte has been good for women and reproductive rights, what is the truth?

Ayotte has made no secret of her desire to defund Planned Parenthood, and she “has shown support for defunding the organization or opposition to continued funding in at least six votes,” according to PolitiFact, though some of those votes were procedural. Though she famously chided Sen. Ted Cruz (R-TX) for attempting to shut down the government over his crusade to strip the reproductive health provider of money in the wake of anti-choice front group Center for Medical Progress’ deceptively edited videos, it was because she didn’t view his methods as a winning strategy for accomplishing that goal—not because she didn’t believe in the cause.

In a letter to Cruz, Ayotte told the Republican presidential candidate that she too is “deeply disturbed by” CMP’s videos and doesn’t believe Planned Parenthood should have federal funding.”This callous disregard for the dignity of human life is heinous, and I do not believe taxpayer dollars should be used to fund a private organization that performs hundreds of thousands of abortions each year and harvests the body parts of unborn children,” wrote Ayotte. She went on to ask what Cruz’s “strategy to succeed in actually defunding Planned Parenthood” really was, given that their mutual efforts to redirect the organization’s funding to other clinics had failed.

Planned Parenthood does not use its federal funding to provide abortions; its fetal tissue donation program has been cleared of wrongdoing in multiple state and federal investigations. And despite claims from conservatives, including Ayotte, that other facilities could provide Planned Parenthood’s patients with health care should the organization lose funding, the Guttmacher Institute found that “credible evidence suggests this is unlikely. In some areas, Planned Parenthood is the sole safety-net provider of contraceptive care.”

“Our analysis shows unequivocally that Planned Parenthood plays a major role in delivering publicly supported contraceptive services and supplies to women who are in need of such care nationwide,” the Guttmacher Institute concluded.

Ayotte has also supported numerous other anti-choice restrictions and legislation, including a 2015 20-week abortion ban based on the medically unfounded claim that fetuses feel pain at this point in pregnancy.

According to NPR, Ayotte has “been a hero to anti-abortion activists since 2005, when as New Hampshire attorney general she defended a parental notification law all the way to the U.S. Supreme Court.” The law required doctors to notify parents of minors seeking an abortion at least 48 hours prior to the procedure, and contained no exceptions for the health of the patient. The Court ultimately ruled against Ayotte, affirming that states may not enact abortion laws that don’t protect women’s health and safety.

National Right to Life found that the New Hampshire senator voted “with” the anti-choice organization in all 14 of the scored votes from 2012 to 2015 it examined.

In 2012, Ayotte co-sponsored the failed “Blunt Amendment,” which would have allowed exemptions from the Affordable Care Act’s birth control benefit for any employers or insurers that had moral objections to providing contraceptive coverage to their employees. And in a 2014 commentary for the Wall Street Journal, Ayotte and Sen. Deb Fischer (R-NE) defended the Supreme Court’s ruling in Burwell v. Hobby Lobby, which grants some employers the right to deny contraceptive coverage to their staff based on the owner’s religious beliefs, falsely claiming that the ruling did “not take away women’s access to birth control.”

Ayotte’s campaign is quick to point to legislation sponsored by the senator that would have allowed over-the-counter contraception as proof that she cares about women’s health. Reproductive health advocates, however, called Ayotte’s Allowing Greater Access to Safe and Effective Contraception Act a “sham” when it was introduced in 2015. Though the American Congress of Obstetricians and Gynecologists (ACOG) generally supports over-the-counter birth control, the organization’s president Dr. Mark S. DeFrancesco, said in a statement that Ayotte’s measure “would actually make more women have to pay for their birth control, and for some women, the cost would be prohibitive.”

Paid leave is yet another issue in which Ayotte has put forth legislation in the name of helping women. Ayotte introduced the Family Friendly and Workplace Flexibility Act of 2015 in March of that year, claiming it would “allow greater flexibility for workers who are looking to better balance their work-life demands.” Analysis by ThinkProgress, however, found that the measure “could weaken already weak rules that require workers to be paid extra for working extra hours, thus ensuring that workweeks don’t grow out of control and employees are compensated fairly.”

Earlier in 2015, Ayotte signed on as a co-sponsor of the Working Families Flexibility Act. According to a statement from the National Partnership for Women and Families (NPWF) condemning the legislation, the act claimed to “give hourly workers more flexibility and time with their loved ones by allowing them to choose paid time off, rather than time-and-a-half wages, as compensation for working more than 40 hours in one week.” However, the bill did “not promote family friendly or flexible workplaces,” explained the nonprofit organization in a fact sheet. “Instead, it would erode hourly workers’ ability to make ends meet, plan for family time, and have predictability, stability, and true flexibility at work.”

Ayotte’s record on equal pay has been similarly debunked by advocates. One of the policies highlighted by Ayotte’s campaign in the wake of Planned Parenthood Votes’ ad was the senator’s introduction of the Gender Advancement In Pay (GAP) Act in September 2015, which she reintroduced ahead of Equal Pay Day this April. The measure was meant to make clear that “employers must pay men and women equal wages for equal work, without reducing the opportunity for employers to reward merit,” according to a press release from Ayotte’s office upon the initial release of the bill.

Critics argued that Ayotte’s bill was nothing other than an election-year stunt. New Hampshire state Sen. Donna Soucy (D-Manchester) told NH1 News that Ayotte’s move was an attempt to look “for some cover … in an effort to be more in line with” New Hampshire voters, after Ayotte voted against other fair pay measures. However, Soucy said, the legislation didn’t really address the issue of pay equity. “Sen. Ayotte’s bill attempts to create paycheck fairness but doesn’t in fact do so because employers could preclude their employees from discussing what they make with their fellow employees,” claimed Soucy.

Similar arguments were made when Ayotte co-sponsored another equal pay measure, the Workplace Advancement Act, with Sens. Deb Fischer (R-NE), Susan Collins (R-ME), Joni Ernst (R-IA), Thad Cochran (R-MS), and Shelley Moore Capito (R-WV) in April 2015. Though the legislation would ban employers from retaliating against their staff, it failed to garner support from Democrats. According to the National Women’s Law Center, the bill would have done “more harm than good” as it “entirely [ignored] the many loopholes and inadequacies in current equal pay laws and simply [stated] that pay discrimination ‘violates existing law.'”

Their arguments are bolstered by Ayotte’s repeated votes against the federal Paycheck Fairness Act, though as Politifact again pointed out, some of these votes were procedural and not against the bill itself. Ayotte did cast one vote in favor of ending debate on the measure and advancing it; the fact-checking site noted, though, that Ayotte’s office reportedly did so in the ultimately denied hopes of changing the bill.

Had it passed, the legislation would have updated the Equal Pay Act of 1963 to include protections such as prohibiting retaliation against employees who share their salary and strengthening penalties for those who violate the law. Ayotte claims she voted against the measure because it “could reduce the ability of employers to award merit pay for good performance and limit the opportunity for women to have flexible work schedules,” according to a press release on the matter.

Speaking at a town hall event in 2013, Ayotte had previously justified her vote against equal pay legislation by asserting that it “created a lot of additional burdens that would … make it more difficult for job creators to create jobs.” The New Hampshire senator went on to add that there were already laws in place that could help address the issue.

There are, however, some examples of Ayotte supporting and introducing legislation that would help women. In June 2015, Ayotte co-sponsored the Pregnant Workers Fairness Act to protect pregnant people from workplace discrimination. Though the legislation never came to a vote, it would have helped “end … discrimination and promote healthy pregnancies and the economic security of pregnant women and their families,” according to the NPWF. That same year, the New Hampshire senator co-sponsored the Protect Access to Lifesaving Screenings (PALS) Act, bipartisan legislation that would have safeguarded access to free annual mammograms for women ages 40 to 74. Ayotte co-sponsored the bipartisan Campus Accountability and Safety Act in 2014 and 2015, which, according to Democratic New York Sen. Kirsten Gillibrand’s website, would “protect students and boost accountability and transparency at colleges and universities” when it comes to sexual assault. Ayotte also co-sponsored the Combating Military Sexual Assault Act of 2013 to address the issue in the military.

Overall, Ayotte has signed onto or supported numerous pieces of legislation that at face value seem to promote reproductive health and women’s rights. Further examination shows, however, that—with a few exceptions—they largely failed to hold up to scrutiny. While Ayotte’s campaign alleges that many of her measures would have helped women and families, analysis suggests that her conservative solutions to addressing these issues often would have made the problems worse. This, coupled with the senator’s fierce anti-choice advocacy, will no doubt keep this portion of Ayotte’s record under tight observation as November’s election approaches.