PBS "To The Contrary" Special Edition Host: Bonnie Erbe Panelists: Megan Beyer, Deomocratic Commentator; Delegate Eleanor Holmes Norton (D-DC)

Interview

PBS "TO THE CONTRARY" SPECIAL EDITION HOST: BONNIE ERBE PANELISTS: MEGAN BEYER, DEMOCRATIC COMMENTATOR; DELEGATE ELEANOR HOLMES NORTON (D-DC); MERCEDES VIANA SCHLAPP, REPUBLICAN COMMENTATOR; GENEVIEVE WOOD, DIRECTOR OF STRATEGIC OPERATIONS, THE HERITAGE FOUNDATION

MS. ERBE: This week, on a special edition of "To the Contrary," this Labor Day weekend we look at the latest stories affecting women and work. Up first, the so-called pay gap between men and women may have more to do with negotiating skills than anything else. Then, a look back at two discussions from earlier this year, the Supreme Court's ruling on wage discrimination and why more working moms say they want part-time work.

(Musical break.)

MS. ERBE: Hello, I'm Bonnie Erbe. Welcome to "To the Contrary," a discussion of news and social trends from diverse perspectives. Up first, bargaining power.

Aversion to social risk, not shyness, may be why women are worse at negotiating salaries and raises than men, this according to a recent study by Harvard and Carnegie Mellon University researchers. Full-time working women earn about $0.77 for every dollar their male counterpart makes. Research has attributed this in part at least to men being more aggressive negotiators for starting salaries and pay raises. But when volunteers in the study's experiment were asked whether they would hire both men and women who bargained for higher salaries, women were viewed more negatively and less likely to be hired. Women who asked for more money were considered to be less nice by those surveyed. Researchers say this shows women have more at stake when haggling for higher wages.

So, Congresswoman Norton, does society look down on women who are aggressive about asking for what they deserve?

DEL. NORTON: It's the male bosses, Bonnie, but they'll come around if women start insisting.

MS. WOOD: I think being assertive -- it's all on how assertive you are and how you go about doing it. I think that's true of men or women.

MS. BEYER: Well, apparently, Bonnie, if we're uppity enough to try to negotiate a good salary, it's not working for us.

MS. SCHLAPP: Well, not only is the women being -- having this problem, but as well as the cultural differences that we find in terms of bargaining for higher salaries.

MS. ERBE: But let me ask you -- I mean, should we care if somebody offers you a job and offers you a salary or is close to offering you a job and tells you the salary and you say, well, that's -- should we care if they think you're less nice because you say well, I really need to make X, not Y?

MS. WOOD: Well, no. If you really need to make X not Y, or if you should be making X not Y, I think you don't do yourself any service by not asking for it. But the question is how do you ask for it? Do you ask for it -- (inaudible)?

MS. ERBE: But do girls have to be nice or --

MS. WOOD: Well, they need to be to be nice but I think you have to say, look, here's what I need to make, here's what I think this job should be paying and I'd like to make that.

MS. BEYER: But you know what? It's not that you're trying to be nice. What they're worried about is not getting the job for having asked. I mean, this reminds me of that old adage that just because you're paranoid doesn't mean everybody isn't after you. (Laughter.) We have been telling these women you're just not being aggressive enough, you've got to get in there and negotiate and their intuitive sense was telling them "I don't think I'd better go there." And this study suggests that the women were right.

MS. ERBE: So you're saying they should be sheepish and take less money?

MS. BEYER: Well, I'm saying that when you look at what happened here, the women who did try to negotiate a better salary were not going to be hired.

MS. ERBE: Yes, but maybe they were seen by the potential employers as less nice, but maybe they need somebody with sharp elbows in a job to get the job done.

MS. SCHLAPP: I totally agree. And there's like -- it's really interesting. For example, in the Hispanic community it's always the men that negotiate the deals, and they're the ones that make the decisions for the family. And interestingly enough -- and with Hispanic women, it's they don't have -- they have never learn the skills. It's like he men are the ones that have to ask the women out on the dates, not the other way around. And so what we're finding is that where are these skills that these women really need to go out there and say, look, I need a higher raise and I've worked hard to get it.

DEL. NORTON: Yes. And this is the question, it seems to me, of the stage in which we find ourselves in the development of women in the work force. These women are often applying for jobs where women are just breaking in, so this is a big deal for them. And it's perhaps too big a deal in their own minds, but it's not -- it seems -- I do not find it unusual that women kind of just breaking the barriers in one sense would not break all of them at one time. And this is the next barrier and I think they'll break it when there are enough of us in there to in fact learn how to do this. You've got to learn. This doesn't come naturally even to men.

MS. ERBE: Well, I think -- yes, it doesn't come naturally, so training is part of the solution for young women and maybe it should be part of business school curricula of negotiating skills, even when it pertains to yourself. But I think of like the Lilly Ledbetter case that we're going to talk about later in this program, but also the Supreme Court ruling handed down a couple of months ago that this woman at an Alabama tire plant, she started out at about the same level, but over years the raises for the men were continuously much more than she was making or she was being given.

So, again, how do you train women to -- and she didn't found out about it until it was really too late under the law to sue for it. So how do you train women to look for these disparities, maybe do research before they go into a job and saying you're offering me $20,000 -- let's say -- but I did research and the average pay in this city for this position is $25,000. Can you meet that?

MS. WOOD: And I think that's a good part, because no one's going to just volunteer and say here's how much we're offering everybody and we're going to give you the low end of the deal. But I mean -- and this is certainly not true of all bosses and all employers, but they, when there's negotiating involved, their goal is to get you to negotiate lower. I mean, that's whether you're the man or the woman sitting there.

So the more you have going in -- this is true when you buy a car, it's true when you go in to get a job or a house -- the more information you have at the table, the stronger of a negotiator you're going to be. You cannot expect them to give you the good deal.

DEL. NORTON: Well -- (inaudible) -- about how this is natural. Among the courses I taught when I was a full time law professor, the one I enjoyed most was negotiation for lawyers. And let me tell you, if anything, we had more males to take this course. And whole art of negotiation is big money in law firms. Whether or not you're litigating when it really comes down to negotiating your way out, or whether you're negotiating in the corporate world, but the notion that men are born into the world knowing how to do this I think is clearly not the case. They learn quicker than we do, though.

MS. ERBE: All right. And I've got to negotiate my way to the next topic. Thank you everyone for joining the panel today. Now a look back at two issues we discussed earlier this year. Up first, women and wage discrimination.

In May, as I've mentioned before, the Supreme Court ruled workers can't sue employers under the Civil Rights Act for pay decimation more than 180 days after the discrimination first occurs. This ruling set off a firestorm all the way up to Congress. Before the August recess, the House passed the Lilly Ledbetter Pay Act named after the woman who brought the case to the Supreme Court. The bill would lift time bars on wage discrimination lawsuits. The Senate is taking up the bill this fall. Here's a look back at what our panelists said when I asked whether the Supreme Court would have ruled differently if Sandra Day O'Connor were still on the bench.

(Begin videotaped segment.)

The Supreme Court ruled this week workers cannot sue employers under the Civil Rights Act for pay discrimination more than 180 days after the discrimination first occurs. This decision provoked the court's sole female member, Justice Ruth Bader Ginsburg, to read a dissent from the bench, a rare practice she first used in April after the court's decision to uphold the ban on certain late term abortions. Justice Ginsberg called the majority, quote: "indifferent to discrimination women face in the work place."

In the Ledbetter decision, the only female supervisor at a Goodyear plant in Alabama sued in 1998 after working there for nearly two decades. Women can still sue for discrimination under the Equal Pay Act, but it offers successful plaintiffs much lower awards. The woman's lawyer says workers claiming race discrimination may have no such alternative.

So Congresswoman Norton, if Justice Sandra Day O'Connor were still on the bench, would the decision have been different?

DEL. NORTON: Bonnie, we weren't crying wolf when we said that elections are as much about the Supreme Court as about the president. O'Connor left on her own, but the two Bush appointees will get to stay.

MS. DOMINGUEZ: Well, as a queen of swing, she certainly kept the court on balance. However, this decision was based on a procedural matter, and so it's hard to say whether she would have made a difference or not.

MS. NATIVIDAD: Well, isn't it a coincidence, when only one woman is left on the Supreme Court, all of a sudden women's rights are interpreted much more narrowly? We need more Sandra Day O'Connors.

MS. CONWAY: If Justice O'Connor wanted to make a political statement outside of the letter of the law, she may have agreed with Justice Ginsburg. But if she wanted to apply this narrow statute, she would have had to agree to the majority.

MS. ERBE: What does this mean to the average woman? We have two former EEOC chairs on the panel.

MS. DOMINGUEZ: Well, I think for the average woman, number one, they're going to have to be far more specific in describing the acts of discrimination and when they occur. You can't wait until after you retire in order to say I'm suffering the effects because that's what the court negated. They say you have to file, especially under Title 7 of Civil Right Act. So I think in terms of -- from the employer perspective, you have make sure you monitor your pay practices to make sure that they're free of discrimination.

DEL. NORTON: Or maybe you don't have to make sure, because with this decision, what the court has done is to tare the guts out of the pay remedy under Title 7 for women and people of color.

MS. ERBE: And why is it worse for people of color?

DEL. NORTON: It's not worse, for women and people of color and --

MS. ERBE: Right. But wait a second. One of the lawyers did say that women may have -- women have the alternative of filing under another act. They get much less money if they win, but persons of color don't get that alternative.

MS. CONWAY: Or religion -- or religious discrimination also.

DEL. NORTON: Well, yes. I don't chose to make that distinction, because the Equal Pay Act is not a very useful act today. We need to completely revise it. But what the court has done here is to make it essentially impossible for the average woman. You have to be so quick and you have to know so much. And let me tell you something about pay: who here goes around talking about what your pay is?

Moreover, some employers actually bar employees from sharing information on pay. We have a revision of the Equal Pay Act that we've already had hearings on that would bar that practice. It's almost impossible to now what your coworker makes. And most people regard that as private information. It almost takes a court suit to find out and this rule essentially makes it impossible, but we're going to fix. Congress is going to fix it.

MS. CONWAY: I would imagine over the course of 19 years in a supervisory capacity, this woman must have been exposed to somebody's salary information at some point, and the average work place, this one not excepted perhaps, does have an awful lot of collegial talk and banter and people -- and people either surreptitiously or innocently discovering what other people make.

But the point of the court's decision is as applied with this statute under the current law, you can't just 19 years later say oh, and by the way, I now need to be paid everything I wasn't pays because I was discriminated. You need to give people in our society notice. There are statutes of limitations in civil laws for a reason. It's so that if I hit you with my car today, five years later I'm not worried that you're going to sue me. At some point you need some closure.

MS. NATIVIDAD: The problem is that for most people you don't see a pattern immediately. It comes after several years.

MS. CONWAY: Nineteen?

MS. NATIVIDAD: Yes. Sometimes -- she was in a field where there were very few women -- where she was the sole woman, and so trying to find out in that atmosphere where there are mostly males that you're being discriminated against probably took a lot of time and that is true for a lot of people.

DEL. NORTON: Yes, but I think, probably the reason she --

(Cross talk.)

MS. ERBE: But wait a second. Wait. The whole Justice Ruth Bader Ginsburg's dissent, which she announced from the bench, which is a fairly rare practice -- I covered the court for nine years and I saw it a couple of times in those nine years -- basically said that -- back to your point, Kellyanne -- that when you are fired discriminatorily, when you are hired -- when someone else is hired, when someone else is promoted and you're not, those are acts where you should know within six months that you've been discriminated against, but specifically she didn't know until just before she retired. She didn't find out that the guys who had been promoted at the same level she had but their pay was raised so much more than hers was.

MS. CONWAY: But just on these facts alone, if you look at what her employer said, that a lot of that was based on merit and that she was -- at some point of her 19 years of service at Goodyear, she was placed on a merit based compensation system. And so if there is a record in her files -- and perhaps there was in the lower courts, I'm not sure -- if there was a record in her files of mediocre performance or at least not as stellar performance as the other men, then they have a basis to pay her less. I'm not concluding that she was an underperforming employer. I'm merely saying that we can't just say I wish the outcome where X, let's get ourselves there somehow.

MS. NATIVIDAD: The reality today is that pay discrimination continues to exist. And it doesn't matter how excellent a recorded of a woman is. It's still whether you're a waitress or an executive, that pay gap remains there. And what the Supreme Court did with this decision is to tell us there are no remedies in terms of this particular --

(Cross talk.)

DEL. NORTON: That's exactly right. But what we're going to do, we've already began to meet in the Congress to fix this. And I think there's a very good chance that you'll have a bipartisan fix of this very soon.

MS. ERBE: And buy enough of a margin to override a veto if there is one?

DEL. NORTON: I'll tell you this. Over the last 10 years or so, if you asked Americans "what are your top three choices of important issues," equal pay always came out very high on that list. I don't know why people would want to vote against giving women a fair chance. Kelly's point is right: nobody wants to leave the employer open to everlasting court suits.

And I think we can fix this with some kind of continuing violation notion where, when the woman knew or should have known and when the employer, by the way, knew or should have known.

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