January 2012

Press coverage of the Supreme Court is sometimes marred by ideological bias.  Liberal court reporters sometimes distort what Supreme Court justices say, or the facts of Supreme Court rulings, in order to make justices look bad.  One example is the blatantly false claim by an Arizona reporter that Justice Scalia criticized court desegregation rulings (a claim the reporter belatedly admitted was false).

Another is the extremely inaccurate press coverage of the Supreme Court’s 2007 decision in Ledbetter v. Goodyear. The New York Times has peddled fables about that decision that persist in the media despite being debunked by journalists like James Taranto, legal scholars like David Copus, legal commentators like Stuart Taylor of the National Journal, and lawyers like Paul Mirengoff.

Plaintiff Lilly Ledbetter lost her pay discrimination case because she filed her complaint to the Equal Employment Opportunity Commission (EEOC) too late. The Court said that, in most cases, employees should file an EEOC complaint within 180 days of their first discriminatory paycheck, if they want to sue under Title VII of the Civil Rights Act.

But the Court also specifically left open the possibility that employees could sue later simply because they didn’t know of the discrimination at the time — a situation it said did not apply to Ledbetter’s case (she testified in her deposition that she knew of the pay disparity in 1992, but only filed her complaint with the EEOC in 1998, around the time she retired). The Court pointedly noted that the plaintiff could have pressed her claim instead under the Equal Pay Act, which has a longer deadline for suing. (Moreover, as lawyer Paul Mirengoff notes, the Supreme Court has long allowed hoodwinked employees to rely on equitable tolling, waiver, and estoppel to sue beyond the deadline, when employer deception keeps them from suing within 180 days, as it made clear in its Zipes decision).

But newspapers like The New York Times did not report any of this. Instead, Times reporters like Linda Greenhouse caricatured the Supreme Court’s decision, falsely claiming Ledbetter never knew of the pay disparity until she retired, and that the Supreme Court created a rigid rule that employees must always sue within 180 days of their first discriminatory paycheck, regardless of whether they knew or could have known of the pay disparity.

As Stuart Taylor notes, this false claim ended up in literally “hundreds of media reports.” But it was completely untrue. As Taylor notes:

Ledbetter admitted in her sworn deposition that “different people that I worked for along the way had always told me that my pay was extremely low” compared to her peers. She testified specifically that a superior had told her in 1992 that her pay was lower than that of other area managers, and that she had learned the amount of the difference by 1994 or 1995. She added that she had told her supervisor in 1995 that “I needed to earn an increase in pay” because “I wanted to get in line with where my peers were, because… at that time I knew definitely that they were all making a thousand [dollars] at least more per month than I was.”

When The Tampa Tribune inadvertently repeated this fable — that Ledbetter never knew of the pay disparity she sued over until she retired, and that the Supreme Court threw out her claim solely because her complaint was not within 180 days of her first paycheck — it eventually corrected its error, at least in the online version.

Originally, the Tribune story, entitled “Equal pay crusader says she’ll always be ‘second-class citizen,’” wrote that the Court’s “majority said that by law she should have filed her case earlier — within 180 days of her first paycheck. It failed to recognize Ledbetter didn’t know about the pay discrepancy until just before she retired in the late 1990s.” Now, it has corrected that paragraph to more accurately read:

The majority said that by law, she should have filed her case within 180 days of her first paycheck – or at least 180 days after she learned of the pay discrepancy. Ledbetter retired from Goodyear in the late 1990s, after 20 years with the company. She learned of the pay discrepancy before she retired, but more than 180 days passed before she filed her case.

By contrast, The New York Times‘s staff not only refused to correct its erroneous reporting, but also refused even to read the portions of the Supreme Court’s Ledbetter decision (like footnote 10) that proved my point about its inaccurate reporting, choosing instead to rely on Ledbetter’s self-serving, unsubstantiated claims to Congress contradicting the Supreme Court. The Times chose instead to claim that Ledbetter never knew of the discrimination until around the time she retired, and that the Supreme Court threw out Ledbetter’s claim regardless of whether she knew or could have known of the discrimination, simply because she did not complain within 180 days of her first paycheck.

But the Supreme Court did not create any such rigid deadline, and expressly left open the possibility that plaintiffs can wait to sue until after learning of discrimination, under the so-called “discovery rule.” It noted in footnote 10 of its opinion:

[W]we have previously declined to address whether Title VII suits are amenable to a discovery rule. . . .Because Ledbetter does not argue that such a rule would change the outcome in her case, we have no occasion to address this issue.

In short, since Ledbetter didn’t even claim that a lack of knowledge had prevented her from suing in time, relaxing the deadline for her would have done her no good. (Moreover, if she had lacked knowledge as a result of being hoodwinked by her employer, she could have had the deadline extended under the Supreme Court’s doctrine of equitable tolling, which applies somewhat more narrowly than the discovery rule).

After she lost her case, Ledbetter claimed to Congress that she had not learned of the discrimination until the end of her career — a claim parroted by gullible politicians and the press. But in Ledbetter’s deposition, she admitted she knew by 1992 – years earlier — that she was paid less than her male peers, notes David Copus in page 8 of the online version of his October 2008 law journal article “Pay Discrimination Claims After Ledbetter.” Similarly, Washington lawyer Paul Mirengoff notes that:

Ledbetter testified that she knew by 1992 that her pay was out of line with her peers. In 1995, she spoke to her supervisor about the problem, telling him that “I knew definitely that they were all making a thousand at least more per month than I was and that I would like to get in line.” Yet Ledbetter waited until 1998 to file her EEOC complaint.

Moreover, although the Supreme Court dismissed Ledbetter’s claim under Title VII, the discrimination law with the shortest deadline, it pointed out that the plaintiff could easily have pressed her claim instead under the Equal Pay Act, which has a longer deadline for suing. As it noted, “Petitioner, having abandoned her claim under the Equal Pay Act, asks us to deviate from our prior decisions in order to permit her to assert her claim under Title VII.” She might have won her case had she simply appealed based on the Equal Pay Act.