A nationally recognized scholar on gender discrimination, Pitt Law Professor Deborah Brake writes the book on Title IX and the women’s sports revolution. Read full story here.
On Jan. 29, 2009, President Obama signed into law the Lilly Ledbetter Fair Pay Act, which reversed a noted (some would say notorious) U.S. Supreme Court decision in the Ledbetter v. Goodyear Tire & Rubber Co. workplace-discrimination case.
The plaintiff in that case, Lilly Ledbetter, had filed a Title VII employment-discrimination lawsuit against Goodyear after learning that she was the lowest-paid supervisor at her plant, despite having more experience than several of her male counterparts.
The Supreme Court ruled 5-4 against Ledbetter because she had failed to meet Title VII’s statute of limitations. The court ruled that Ledbetter should have filed a claim within 180 days of receiving her first unfairly low paycheck even though she did not know at that time that she was being paid less than her coworkers.
Pitt law professor Deborah Brake coauthored an amicus curiae brief on Ledbetter’s behalf and testified in 2007 before a U.S. House of Representatives committee considering legislation to amend Title VII’s statutory limitations period.
The law that grew out of those discussions, the Ledbetter Fair Pay Act, overturned the Ledbetter decision by declaring that the limitation period for filing a pay discrimination lawsuit should reset with each discriminatory paycheck.
“With the Ledbetter fix, pay discrimination will no longer be grandfathered in, and that’s a good start. But it’s nowhere near enough,” says Brake, a nationally recognized scholar on gender discrimination. “It doesn’t do anything to address loopholes in the law that have allowed pay discrimination to continue for so long. Two bills pending before Congress would go a long way toward doing that—the Paycheck Fairness Act and the Fair Pay Act.”
Testifying in support of the bills at a Senate committee hearing on March 11, 2010, Brake urged lawmakers to keep in mind just how high a bar existing law sets for an employee to prove pay discrimination:
“A claimant must prove she is paid less for ‘equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.’
“Courts have interpreted this standard strictly. For example, female senior vice presidents who earn less than male vice presidents have failed this standard because they are responsible for different aspects of the company’s operations, even when the responsibilities were equally challenging and the jobs were classified at the same level. Indeed, it appears that a plaintiff can even lose an Equal Pay Act case because she has more responsibility than her higher-paid male peers. The fact of the matter is, it is extremely difficult to prove that jobs are substantially equal when we’re dealing with non-standardized, non-commodity jobs—that is, the kinds of service-oriented, higher-tech, managerial jobs common in the modern economy.”
In addition, even once an employee proves that she is paid less than a man for performing equal work, that disparity may be justified if it is based on any “factor other than sex.” Brake testified that this defense has been interpreted far too broadly by courts, allowing employers to rely on differences in employees’ willingness to negotiate salary and disparities in prior salaries, factors that have been shown to be influenced by gender.
The bill Brake supports would close this loophole by tightening this defense, requiring employers to show that the factors relied on were job-related and truly gender-neutral.
Sex-discrimination skeptics attribute America’s ongoing gender pay gap to differences between men and women in education, experience, choices of occupation, hours worked, time spent rearing children, reluctance among women to negotiate for higher salaries… .
Brake is not persuaded.
“Certainly, a lot of factors besides discrimination may contribute to the gap,” she acknowledges. “But the research shows that even when you eliminate those factors, there remains a good chunk of the gap that is unexplained by anything except gender.”
In her March 2010 Senate testimony, Brake said the gap
“exists at every level of earnings, from teacher’s assistants, where the female median salary of $15,000 is 75 percent of the male median salary of $20,000, to physicians, where the female median salary, $88,000, is 63 percent of the male median salary, $140,000. Even when other factors are accounted for—including age, education, years worked, hours worked, job tenure, occupation, and jobs held—a substantial portion of the wage gap remains.”
Compared with the pay gap, women’s progress toward equality in competitive sports encourages Brake. Jumpstarting that movement was Title IX, the landmark federal statute enacted in 1972 to prohibit sex discrimination in education, including schools’ athletic programs.
In August 2010, NYU Press published Brake’s book, Getting in the Game: Title IX and the Women’s Sports Revolution, the first legal analysis of the iconic law—its requirements, successes, and failures.
“Title IX’s biggest success has been in getting mass numbers of women into playing competitive sports and creating a culture where that is celebrated,” Brake says. “The numbers are extraordinary. Today, more than 3 million girls play sports in high school—almost one out of every 2.5 girls. Before Title IX, the participation rate was one of every 27 girls.”
Brake writes that Title IX also has fostered social bonds and positive body images among women, as well as popular acceptance of strong, competitive women in schools and workplaces.
Yet sex discrimination in athletics—underfunding of women’s sports, fewer athletic opportunities for women than men—still goes on, especially at the elementary and secondary school levels, the law professor says.
“Some of it is motivated by budgetary pressures. Some of it results from lack of attention and lack of knowledge. For example, since 1975 school districts have been required to appoint a Title IX compliance coordinator, yet most districts still don’t have one.
“At the college level,” Brake continues, “it’s not so much lack of awareness of Title IX requirements as it is budgetary factors or just inertia. A lot of colleges have gotten away with being noncompliant with Title IX for a long time. And students are reluctant to step forward to bring lawsuits.”
Ironically, Title IX has led to reductions in the numbers of women coaches and athletic administrators. “Prior to Title IX, schools tended to maintain separate athletic departments for women, which had its downsides, of course, but the upside was that women were coaching and administering women’s sports, serving as strong role models,” Brake observes.
“Under Title IX, men’s and women’s sports were integrated into single athletic departments controlled, by and large, by men. And, as women’s sports became more valued, more men began coaching female sports teams.”
The mother of two daughters (born in 2006 and 2009, respectively), Brake expresses mixed feelings about prospects for gender equality by the time her girls grow up.
“In terms of sports, the acceptance and appreciation of female athletes has improved so much since I was a little girl,” she marvels, “although I do feel frustrated by the slow pace of Title IX compliance. Since around 2002, women’s participation in college-level athletics has stopped climbing, and colleges have stopped adding sports opportunities for women. Now that we’re in tough times economically, it’s not a good environment for adding to those opportunities. But still, in the long term I’m hopeful.
“I’m not sure what to say about the wage gap. Since the 1970s and ‘80s, the pace of progress has slowed to a crawl. So I can’t say we’re on the right trajectory there.”
“I’m lucky to teach some of the most interesting subject matter out there. I love the areas that I teach in, and I try to bring that passion to the classroom,” says Brake, a graduate of Harvard Law School and Stanford University, who teaches courses at Pitt on constitutional law, Title IX, gender and law, and employment discrimination. Before joining Pitt’s law faculty, she was senior counsel at the National Women’s Law Center in Washington, D.C.
“I don’t believe in scaring students into preparation,” Brake explains. “I expect them to be prepared, and I expect a lot out of them, but I want it to be an active learning experience where they’re not reluctant to open their mouths for fear of being humiliated. The old-style Socratic method is not for me.”
Just as she tries to connect her scholarship to practical legal problems, Brake likes to frame classroom discussions around real-life cases like Ledbetter v. Goodyear, sharing her own experiences.
“It’s a way of bringing the law to life, showing students how it impacts people’s lives,” she says, “and that the law is not a set of dry procedural issues on the page.”