Obama Distorts Ledbetter v. Goodyear Case, In Signing Lilly Ledbetter Fair Pay Act

by Hans Bader on January 29, 2009 · 2 comments

in Employment, Labor, Legal, Politics as Usual, Regulation, Sanctimony

In signing his first bill into law, Obama didn’t let facts get in the way of a good story, or milking a political wedge issue. He falsely claimed that Lilly Ledbetter, whose pay discrimination claim was dismissed by the Supreme Court as untimely, worked at Goodyear “for nearly two decades before discovering that for years, she was paid less than her male colleagues for doing the very same work.” Actually, Ledbetter knew by 1992, if not earlier, that she was being paid less than the male employees she claimed should have been paid the same as her. Small wonder that the Supreme Court’s 2007 ruling in Ledbetter v. Goodyear dismissed her claim as untimely. (She brought the claim after the supervisor she accused of discrimination had died, and shortly before she retired).

Ledbetter now claims to the contrary, but she admitted under oath in her deposition that she knew for years of the wage disparity she now claims was discriminatory. If she really hadn’t been able to discover the discrimination in time to meet the deadline, her lawyers would have cited that fact to take advantage of exceptions to the deadline for hoodwinked employees (known as equitable tolling or estoppel). But as the Supreme Court noted in footnote 10 of its decision, even broadening those existing exceptions to the deadline further for her benefit would have done her no good, since her discovery of the wage disparity had occurred long ago.

Many lawyers, like leading employment lawyer David Copus and prominent Washington lawyer Paul Mirengoff, have quoted from Ledbetter’s deposition testimony admitting she knew of the wage disparity. See, e.g., David Copus, “Pay Discrimination Claims After Ledbetter,” Defense Counsel Journal, Volume 75, page 300 (Oct. 1, 2008).

Mirengoff has chided Obama and the White House for telling tall tales about the Ledbetter case, both recently and in the past. So have we and many other commentators. But the President made the same false claims yet again in his remarks today at the Oval Office signing into law the Lilly Ledbetter Fair Pay Act. That law will functionally eliminate the deadline for bringing most pay discrimination claims, by restarting the deadline for suing each time an employee receives a paycheck or pension benefit allegedly influenced by past discrimination.

During the 2008 election campaign, both Obama and state democratic parties made similar false claims about the Ledbetter case, in order to use it as a political wedge issue.

The White House has also made false statements about how much time employees have to sue over pay discrimination.

dscott January 31, 2009 at 9:19 am

Hans, Here is a point often overlooked regarding long term employees like Ledbetter, it's called incremental pay increase versus significant pay increase (10 to 20%) via job switching. The most companies have ever been willing to increase an existing employee's salary on an annual basis is around 5%. It would take around 14 years to double a salary at 5% annual pay increases.

If you worked through the 1980’s and 90’s as I have, one thing that always struck me at that time was the idea you had to leave your current employer in order to get a substantial raise otherwise you would fall behind in pay. Much was written during this period where wages were rising quite nicely for those who changed employers but wages stagnated for those who accepted the cost of living pay raise by staying with the employer. I noted many times new hires of that time period started at the “prevailing wage” offered by industry. That prevailing wage was either the same as the worker of 20 years or higher. It was not unusual for an employee to increase their salary $5k to $10k just by changing jobs…

…Ms. Ledbetter’s while rightly being upset with her employer for not appreciating her financially made the fatal mistake of that time period – complacency with her career. She neglected her career and thus blamed her employer for her failure to be responsible for her own financial well being. It matters not how long you work for any employer, the wage you started at is only raised incrementally based upon your current pay unless there is a significant promotion. She had none.

http://conservablogs.com/publiusforum/2009/01/30/

Roscoe February 3, 2009 at 11:55 am

It's good to see someone finally telling the truth about the Supreme Court's decision and the way B. Obama blatantly misrepresented it during his campaign and at the signing ceremony. Any reporter with half a brain could have looked up the decision and seen that the "she didn't know" story was a fabrication, and that the opinion was correct. As a lawyer who commonly represents employers in Title VII and ADA cases, I guess I should be glad to see new law that will probably lead to more work. But this change is horribly unjust, and was sold to the public and to Congress with a pack of bald-faced lies. I cannot help but think that the public would be outraged if they knew the truth about it.

There may be at least a partially redeeming side to the story, though. So far as I'm aware, the Court has never squarely addressed whether the "discovery rule" or its variants can be applied to claims under the laws covered by the Title VII enforcement provisions. That Congress enacted this provision seems to say, by implication, that they can't. If they could, there would have been no "need" for the Ledbetter Act, under the facts as they were (mis)represented to be. That Congress has limited this Act to cases of continuing employment with diminished pay seems to negate use of those equitable and quasi-equitable doctrines in all other circumstances of allegedly "undiscovered violations."

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