Rewriting the Law to Benefit People With Stupid Lawyers

by Hans Bader on February 4, 2008 · 6 comments

Ignorance can lead to unjustified anger. Congressional leaders are mad at the Supreme Court for enforcing a 180-day deadline for filing discrimination claims in the Ledbetter v. Goodyear case, arguing that such a deadline is too short for pay discrimination claims, since it’s often hard for an employee to figure out in just 180 days whether she’s being paid less than her co-workers because of her gender (after all, your employer doesn’t usually tell you what your co-workers are being paid).

But as Ted Frank notes today, the Ledbetter case never said that all pay discrimination claims had to be brought in 180 days. Instead, it applied the general deadline for discrimination claims contained in Title VII of the Civil Rights Act, which covers many kinds of actions you learn about instantly — like being fired — and not just things that are often private, like pay.

In a footnote, the Supreme Court noted that the plaintiff, Lily Ledbetter, could just as easily have sued under the Equal Pay Act, which, recognizing that it is sometimes difficult to detect pay discrimination, has a much more generous deadline for bringing claims, allowing pay discrimination claims to be brought three years after it occurs. But her stupid lawyer failed even to make such a claim in her appeal.

Journalists never bothered to report this, because it conflicted with the false narrative they wanted to sell readers: that the big, bad meanies on the Supreme Court were insensitive to the realities of pay discrimination, and perhaps sexist towards women. Washington Post editorial cartoonist Tom Toles published a misleading caricature of a leering male justice resembling Justice Samuel Alito, the author of the Ledbetter decision, taunting a dissenting female justice resembling Ruth Bader Ginsburg, who wrote an over-the-top dissent falsely accusing the majority of being “indifferent” to sex discrimination.

New York Times reporter Linda Greenhouse made the baseless accusation that the justices in the majority ruled as they did because they were male, and falsely suggested that the ruling would have appalled former Supreme Court justice Sandra Day O’Connor. (That claim is contradicted by the fact that Justice O’Connor, in past rulings, enforced deadlines in discrimination cases more strictly than some of the justices in the majority, like Justice Thomas; her ruling in the Morgan case, which involved a black female plaintiff, is a case in point). To journalists, the plaintiff, Lilly Ledbetter, has become the latest liberal martyr/saint.

The House of Representatives, legislating based on sound bites rather than facts, has now passed a bill, the Lilly Ledbetter Fair Pay Act, to essentially get rid of the deadline for pay discrimination claims under Title VII.

Another bill that would not only do that, but also overturn many other Supreme Court decisions, has been introduced by Ted Kennedy. Kennedy’s bill, the so-called Civil Rights Act of 2008, would render employers and educational institutions liable for neutral, reasonable, non-prejudiced practices that inadvertently have a “disparate impact” on some group (like the elderly or a minority group), even in situations where no justice has ever suggested that liability would be appropriate. It would also radically expand educational institutions’ liability for harassment by non-employees, such as students, making institutions liable for student-on-student harassment even in situations where all 9 of the supreme court justices would have rejected liability in Davis v. Monroe County Board of Education (1999).

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