PolitiFact Smears Supreme Court, Provides False Political Talking Point For Democratic Party

by Hans Bader on October 22, 2012 · 1 comment

in Economy, Employment, Labor, Legal, Regulation

Earlier, the left-leaning “fact-checker” PolitiFact made the false claim the Supreme Court had declared employees are barred from suing over pay discrimination even if they did not learn of the discrimination in time to sue, “making it impossible for employees who learned of such discrimination later to get relief, such as back pay.”

PolitiFact has failed to fix the false claim, even after being informed its claim was false by a leading law professor, Jonathan Adler, who both contacted PolitiFact last week to inform it of its false claim, and wrote about PolitiFact’s error twice at a legal website that is regularly read by lawyers and Supreme Court justices (a website whose legal commentary is so well-respected its contents go into Westlaw’s news database).

I also contacted PolitiFact about its error, and sent PolitiFact both court documents and language from the Supreme Court’s opinion that contradicted PolitiFact. Yet, PolitiFact has failed to fix its erroneous claims even after other lawyers and journalists pointed out the error of its claims, such as Newsweek’s Megan McArdle (at the Daily Beast) and a former Justice Department lawyer at the Heritage Foundation. PolitiFact’s claim echoes a false claim made by President Obama in the second presidential debate in 2012 and in mailings by state Democratic Parties in October 2008. As I explain further below, this is part of a pattern of egregiously false claims and ideological bias by PolitiFact.

The Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., said employees who want to bring a pay discrimination lawsuit under Title VII (the federal antidiscrimination law with the shortest deadline) generally have to file a complaint with the federal Equal Employment Opportunity Commission (EEOC) within 180 days of the discriminatory pay decision. But it specifically left open the possibility they could sue later on — even if they failed to file a timely EEOC complaint — if they did not discover the discrimination until later. The case involved Lilly Ledbetter, who waited more than five years after learning of a pay disparity between her and her male co-workers to file an EEOC complaint.  She learned of the pay disparity by 1992, as excerpts from her deposition, filed in the Supreme Court as part of the Joint Appendix, make clear. In response to the question: “So you knew in 1992 that you were being paid less than your peers?” she answered simply, “Yes, sir.” (See Joint Appendix at pg. 233; page 123 of Ledbetter’s deposition.) But she did not file a legal complaint over it until July 1998, shortly before her retirement. Although Ledbetter delayed in filing a complaint (so long that the supervisor she accused of sexism in setting her pay died by the time her case was tried), many employees sue soon after finding out about discriminatory pay disparities. The Supreme Court specifically left open that such employees can sue, even if they learn of the discrimination more than 180 days after their pay was set, under the “discovery rule” exception to the 180-day deadline. In footnote 10 of its opinion, the Court wrote, “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.”

Politifact  ignored this language in the Supreme Court’s decision and ignored the fact Ledbetter knew for years of the pay disparity she later sued over, even though I have sent its staff the relevant pages of Ledbetter’s deposition and a link to the passage above in the Supreme Court’s decision. It has done so despite its claim to Professor Adler it would “review” the accuracy of its claims, and despite the fact “it would take no more than 10 minutes to read the relevant portions of the Supreme Court’s decision,” as Professor Adler noted last week. (PolitiFact’s erroneous claim occurred in a so-called “fact check” that cited the Supreme Court’s decision as one of its “sources,” and provided a hyperlink to the Supreme Court opinion that contradicted it. If PolitiFact actually had read the Supreme Court’s decision, as it claimed, it is hard to imagine it would have made such a gross error about what the Supreme Court actually said. PolitiFact’s false claim also was contradicted by Wikipedia at the time.)

Not content to make false claims about the Supreme Court’s Ledbetter decision, PolitiFact also has made plainly false claims about the Lilly Ledbetter Fair Pay Act, which addressed the Supreme Court’s decision in Ledbetter v. Goodyear insofar as it affected pay discrimination cases.  Politifact claimed that law merely allows workers to sue within 180 days of “when discriminatory action was discovered.”  In reality, that law allows employees to sue “decades” after discovering a discriminatory action that affected their pay, as long as they are still drawing a paycheck affecting that discriminatory action.

The supposedly “independent” PolitiFact is a project of the Tampa Bay Times, a liberal newspaper that just endorsed the President.  Far from being “independent,” PolitiFact employs highly-partisan “fact-checkers” who are infatuated with left-wing causes like the Occupy Movement.  For example, one of its fact-checkers, Tom Feran, publicly endorsed Obama in 2008, and agreed with a commentary claiming that conservatism is a “cancer” that is synonymous with racism and “patriarchy.” He refers to conservatives as “wingnuts” and “yahoos.”  While there are plenty of things wrong with the Republican Party, PolitiFact has no excuse for its long line of blatantly false factual claims designed to help Democratic candidates.

The Tampa Bay Times is owned by the Poynter Center, which recently treated a legal commentator who helped promote the Duke Lacrosse hoax (and smeared innocent falsely-accused people) as an “expert” on how journalists “should cover gender issues,” and defended her false claims.  Its “fact checker” PolitiFact is sometimes far from being factual: it doesn’t seem to understand the laws of supply and demand, claiming that legislation restricting the supply of energy will not necessarily increase energy prices, even legislation whose own supporters admit it will increase energy prices.

PolitiFact has made egregiously-false claims to help liberal politicians, such as PolitiFact’s false claim that the Obama Administration “strengthened” welfare reform when it claimed the authority to waive the legally-unwaivable work requirements in the 1996 welfare reform law, a claim so ludicrous that when Bill Clinton made the same claim at the Democratic National Convention, even The Washington Post’s liberal fact-checker, Glenn Kessler, gave him”two pinocchios” for making this false claim peddled by PolitiFact.  The Obama Administration’s action drew criticism for weakening welfare reform from welfare experts like Robert Rector, an architect of the 1996 welfare reform law; Democrat Mickey Kaus; and the editorial boards of the The Wall Street Journal (see here) and Richmond Times-Dispatch (see its four-part series here, here, here, and here).

The Lilly Ledbetter Act, enacted in 2009, changed the way that statutory deadlines operate for pay discrimination claims brought under the federal law that generally has the shortest and toughest deadline for bringing discrimination cases, Title VII of the Civil Rights Act of 1964.  The Supreme Court’s Ledbetter decision was a 5-to-4 ruling.  The five justices in the majority said that Title VII’s 180-day deadline for pay discrimination claims runs from the date that a worker’s pay is set (at least when the worker discovers the discrimination in time to sue).  The four justices who dissented argued that the 180-day deadline for suing begins anew every time a worker gets a paycheck influenced by a pay decision that was allegedly discriminatory.  The Ledbetter Act adopts the dissent’s position, known as the “paycheck accrual” rule, and amends Title VII’s deadline to restart the clock on the deadline each time an employee gets an affected paycheck. As Wikipedia noted, the Ledbetter “Act amends the Civil Rights Act of 1964 stating that the 180-day statute of limitations for filing an equal-pay lawsuit regarding pay discrimination resets with each new paycheck affected by that discriminatory action.” The law provides that the deadline starts running all over again “each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.” See 42 U.S.C. 2000e- 5(e)(3)(a).

(This “paycheck accrual” rule that the Ledbetter Act applies to Title VII of the Civil Rights Act arguably already applied to another law that Ledbetter failed to press her claim under, the Equal Pay Act (EPA), which has a longer deadline for suing.  The EPA only deals with pay discrimination claims, which is relevant because workers sometimes discover pay discrimination years after the fact, meaning that deadlines perhaps should be more lenient under laws that only deal with pay discrimination.  But workers discover other acts that affect paychecks — like promotions or demotions — immediately, so it may make sense to interpret the Title VII statute, which covers all kinds of discrimination (like discriminatory promotion), as having the statutory deadline run from the date of the employer’s decision, rather than from the later date that the worker’s most recent paycheck is received).

Hans Bader October 22, 2012 at 6:20 pm

Since the Ledbetter Act explicitly restarts the time for suing “each time wages” or “compensation is paid,” it is plainly NOT true, as PolitiFact claims, that the Ledbetter Act merely allows workers to sue within 180 days of “when discriminatory action was discovered.” Instead, as the Heritage Foundation and others have noted, the Ledbetter Act allows employees to sue “decades” after discovering a discriminatory action, as long as the action allegedly still affects their paycheck — regardless of how long ago they discovered the allegedly “discriminatory action.”

By contrast, the Supreme Court did not rigidly apply the statutory deadline even prior to the Ledbetter Act. If Ledbetter had lacked knowledge of the pay disparity as a result of being deceived by her employer, she could clearly have had the deadline extended under the Supreme Court’s longstanding doctrines of equitable tolling and estoppel. See Zipes v. Trans World Airlines, 455 U.S. 385, 393 (1982) (“filing a timely charge of discrimination with the EEOC is . . . a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling”).

These doctrines were well-established, unquestioned exceptions to the 180-day deadline at the time Ledbetter’s case was decided, and were not disturbed by the Ledbetter decision. Those exceptions to the deadline are a bit narrower than the broader, “discovery rule” exception that the Supreme Court left unresolved in the Ledbetter case. Ledbetter didn’t allege that ANY of these common-sense exceptions to the deadline applied in her case, because they plainly did not apply in light of her lengthy and conscious delay in suing. See lawyer Paul Mirengoff’s discussion at this link:

http://www.powerlineblog.com/archives/2010/07/026687.php

Here is the Heritage Foundation’s discussion of how the Ledbetter Act permits some employees to sue “decades” after an employer sets their pay:

http://www.heritage.org/research/reports/2009/01/the-lilly-ledbetter-fair-pay-act-the-heritage-foundation-2009-labor-boot-camp

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