There are many ways to protect employees from sexual harassment in the workplace. In 1982, Ann Hopkins applied for a partnership at Price Waterhouse in New York, where she was a senior manager. The company held off on making the decision for a year and then refused to revisit her proposal. She later learned that she was not made a partner on the basis of her sex. Notes from the hiring decision meeting found that Hopkins, a senior manager, was mocked and criticized behind her back in official meetings on her potential promotion due to her sex, and, more specifically, how she presented her gender. Among the comments that put the firm in hot water were that Hopkins needed “a course at charm school,” that she needed to wear more makeup and jewelry, and that she needed to walk and talk in a more womanly manner, and, especially, that she needed to swear less. While no one can fault the company for having standards in how its employees present themselves, Hopkins took issue with the fact that she was forced to meet expectations that her male coworkers were not. So she sued, and because these conversations were held in an official discussion about whether or not she should be promoted to partner, the Supreme Court ultimately held that the company had failed to prove that its decision not to promote Hopkins was based on any legitimate standards. The Price Waterhouse v. Hopkins decision protected women from unequal treatment in the workplace, reaffirming Title VII requirements that hiring and promotion decisions must be made on the basis of a candidate’s qualifications, rather than their sex.

Just nine years after Price Waterhouse v. Hopkins was decided, in 1998, Lilly Ledbetter, a factory worker at Goodyear Tire and Rubber Company in Alabama, found an anonymous note in her mailbox tipping her off to the fact that she had been paid less than her male counterparts for years. When she first took the case to court, she was awarded $3.5 million but the company appealed and the Appellate Court rescinded her victory on the basis that discrimination claims had to be proved within 180 days, so she only had grounds to appeal the last 6 months of unequal paychecks. The Supreme Court upheld the Appeals Court’s decision, arguing that the lawsuit should have been filed within 180 days of the first unequal paycheck. Ledbetter, of course, could not have done this, because she did not know she was being paid unequally.

Ledbetter’s story ended with President Barack Obama signing the Lilly Ledbetter Fair Pay Act in 2009, removing the 180-day statute of limitations for challenging pay discrimination. The Lilly Ledbetter Fair Pay Act overturned the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007), recognizing what Ledbetter and her many employment attorneys had been arguing all along: that it is nearly impossible to recognize that one is being paid unequally after a single paycheck. Summarily, in her dissent, Supreme Court Justice Ruth Bader Ginsburg argued that “pay disparities often occur, as they did in Ledbetter’s case, in small increments; only over time is there strong cause to suspect that discrimination is at work. ”Indeed, the policy limiting discrimination claims to 180 days after the alleged employment discrimination occurs, coupled with the common workplace practice of keeping employees’ salaries secret, making it effectively impossible for injured parties to fight for their equal treatment.

The impact of the Lilly Ledbetter Fair Pay Act is significant. On average, women earn seventy-eight cents for every dollar that a man earns – and that number is even lower for women of color. In most of these cases, it is extremely unlikely that hiring managers are consciously deciding to pay women less because they believe women do not work as hard or are simply worthless. But without stringent laws preventing this discrimination, unconscious biases can prevent women from earning an extra four hundred thousand dollars over the course of their careers. These regulations do not harm companies that are operating legally and fairly, but they allow those employed at companies with unfair pay practices to retaliate and earn the money they deserve.

The Lilly Ledbetter Fair Pay Act was not the first law to address sex discrimination in the workplace. It actually built upon a web of laws intended to prevent sex discrimination in the workplace. The Equal Pay Act of 1963, for instance, prohibited differences in pay between men and women who worked essentially the same job, with the same required skill, effort and responsibility, under similar working conditions, for the same company. Additionally, Title VII of the Civil Rights Act of 1964 (Pub. L. 88-352) prohibited workplace discrimination (on the basis of sex, race, color, or national origin), laying out a series of “unlawful practices.” These included such things as allowing the sex of an individual to influence hiring, firing, and promotion decisions, pay, or terms, conditions, and privileges of that individual’s employment, or limiting, segregating or classifying employees on the basis of sex. The law also prevents employment agencies, labor organizations, and job training programs from discriminating on the basis of sex. Additionally, the Family and Medical Leave Act of 1993 and the preceding Pregnancy Discrimination Act of 1978 prevented discrimination on the basis of pregnancy or motherhood.

The myriad of sex discrimination laws attempts to wipe out discrimination in hiring and firing, promotions, pay, and other treatment in the workplace on the basis of sex, as well as give injured parties the power to fight back against discriminatory practices. Longer statutes of limitations and broader definitions of discrimination and harassment have helped level the playing field. But as many women who face sex discrimination in the workplace still fall through the cracks with lower paychecks, fewer promotions, and limited pregnancy leave opportunities, it is clear that there is still more work to be done. Unfortunately, the lingering problems are not representative of bad policy, but of our culture. Unconscious bias is difficult to regulate, and until our culture changes, it will continue to influence workplace practices.

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Author: Kaitlyn Beyer, University of Michigan Law School