Supreme Court Tackles the “Last Taboo”

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On Monday, the Supreme Court heard oral argument on a pay equity case brought by a former Goodyear manager, Lilly Ledbetter. You can read about the case here, but the basic question was whether a woman who found out about sex-based pay discrimination years after the discriminatory acts can sue or whether the statute of limitations bars the suit because the discriminatory acts are too far in the past.

What’s interesting to me about the case is that the technical point about the statute of limitations raises the very important issue of the “last taboo.” Feminist Law Prof Kathryn Stanchi co-wrote a piece a few years ago mentioning the taboo in American culture against discussing salary. She and a legal writing colleague then critiqued the salary structure within legal academia for writing professors.

What’s relevant to Monday’s Supreme Court argument is the introduction of the piece and its discussion of the way the last taboo enables discrimination:

One of the last American taboos prohibits discussion of salary. Although it is commonplace for sexual and family dysfunction to be discussed on afternoon television, most people still consider asking about salary to be rude and intrusive. American competitiveness may be the reason for the strength and longevity of the taboo. Information is power; the amount of money a person earns can be a measure of success, personal worth and even masculinity. Information about money is especially powerful and dangerous.

Even though the strength of the taboo in the business world is largely dependent on employees adhering to the code of silence, it is employers who reap the primary benefit of the taboo. An employer is empowered when employees will not discuss salary among themselves. By shielding employers from scrutiny decisions about salary, the taboo frees employers to set salaries using whatever criteria they choose. Thus, the taboo can free the employer to discriminate-even on unlawful bases. If there is a discriminatory salary differential in an institution, but nobody knows about it, the differential simply does not exist for anyone outside of the institutional decision-makers.

Let’s hope the Supreme Court recognizes the way this secrecy contributed to Lilly Ledbetter’s situation and eases the statute of limitations to accommodate this last taboo.

– David S. Cohen

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