Actually, this blog post is not really about binders full of women – the title is pure, unadulterated pandering.  But it is about the conversation that generated that Tweet-worthy sound bite.  In case your computer, smartphone, television and ears were down this week, let’s recap.  At the October 16, 2012 town hall Presidential Debate, an undecided voter asked how the candidates would address pay inequality for women.  President Obama answered by referencing his support of the Lilly Ledbetter Act.  Governor Romney answered with a story about binders full of women searching for female candidates, and providing flexibility for female employees.  An employment lawyer drooled.  Please note that this is not a political discussion, but a legal one, and the analysis that follows is about whether the law would permit the approaches recommended by the candidates.

 President Obama had the easy path.  The Lilly Ledbetter Act is now the law.  Under the civil rights laws, employees have 180 days from the alleged discriminatory act to file a complaint with state or federal equal employment commissions.  If the employee fails to file the claim in the time required, the employee’s claim is forever barred.  Poor Ms. Ledbetter discovered, too late, that she was paid less than a male employee for the same work.  The court dismissed her claim because she filed it more than 180 days after the first discriminatory paycheck.  The Lilly Ledbetter Act states that the statute of limitations for an equal pay claim resets with each paycheck.  It was the first statute that President Obama signed into law. 

 Governor Romney’s answer invites employment lawyer criticism.  To be clear, this is not political criticism, but legal criticism.  The answer essentially had two parts:  first, his search for female candidates and second, his willingness to provide flexibility to female employers who needed to get home to make dinner.  Let’s start with the search for female candidates.  The civil rights laws prohibit discrimination on the basis of gender.   It was not clear from Governor Romney’s answer whether or not he was referring to an affirmative action program, or whether there was a written diversity plan at issue.  But, certainly, the goal of employing an underrepresented group in the office of the governor is a laudable one. 

 Nevertheless, an employment lawyer worries. Imagine two candidates, both with comparable education and experience, both interviewed well, and, in all respects were both qualified candidates.  One is male, one is female.  Could the governor decide to hire the female candidate solely because she was female?  Put another way, would it be discrimination on the basis of gender for an employer to deny employment to the equally qualified male candidate solely on the basis of his gender?  The legal answer is yes.  An interesting defense to such a claim is that the governor had made a policy decision that his cabinet must reflect the views of qualified women.   Employers should always base their decisions on qualifications for the job.  Where an employer has decided that gender, for example, is part of the qualifications for the job, they must also articulate a legitimate business reason for such a qualification. 

 Governor Romney also talked about the need for flexibility for female employees.  Tsk tsk, Governor Romney, tsk tsk.  The law requires that Governor Romney provide the same level of flexibly for all of his employees, regardless of gender.  The law also requires that Governor Romney avoid making employment decisions based on gender stereotypes (i.e., the woman needs to get home to make dinner).  An employment lawyer loses a few hours of sleep. 

 Interestingly, this is the place where the candidates intersect.  The law requires equal pay for equal work, and the Lilly Ledbetter Act keeps that claim alive with each new paycheck. But employees, male and female, do ask for flexible work schedules, and many employers are happy to oblige to keep good candidates. Our advice:  don’t be like Governor Romney!  Make sure flexibility is available to all employees, and that the pay is commensurate with the work provided. 

 The candidates’ discussion does highlight the challenges for employers:  sometimes, an employer’s good intentions, the realities of the workplace, and the requirements of the law seem  at odds with one another.  Even presidential candidates struggle with these competing concerns.  It is our experience that employers can work through these complex issues and strike a balance with good legal and human resources advice.