Dianne Feinstein

Liberal Senators like Ben Cardin (D-Md.) and Dianne Feinstein (D-Calif.) are peddling fables about a Supreme Court ruling, Ledbetter v. Goodyear Tire & Rubber Co. (2007).

In its Ledbetter ruling, the Supreme Court said that employees who choose to sue under the federal discrimination law with the shortest deadline (Title VII) should generally sue within 180 days, at least where they could have discovered the discrimination in time to do so.  It rejected as untimely a discrimination claim by Lilly Ledbetter, who had known for years of the pay disparity she later sued over.

That’s a far cry from how Senator Cardin describes the case.  Today, in the Supreme Court confirmation hearings for Elena Kagan, Cardin made false claims, both about what the Supreme Court said in the Ledbetter case, and about plaintiff Lilly Ledbetter and her lawsuit.  In claims echoed by Senator Feinstein, Cardin alleged that:

“The Court said Mrs. Ledbetter had to file her case within 180 days after the beginning of the discrimination, and since she did not do that, her claim was barred by the statute of limitations. This defies logic. How can a person bring a claim when they don’t know they are being discriminated against? It makes no sense.”

The Supreme Court said no such thing, as National Review’s Ed Whelan, a lawyer, notes, pointing out that Ms. Ledbetter knew for years of the alleged discrimination before she chose to sue over it.  The claims made by Senator Cardin were long ago debunked by the Wall Street Journal’s 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 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 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.)

As Stuart Taylor, a legal commentator for the National Journal, has noted,

“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.’”

The Supreme Court did not create a rigid deadline that applies regardless of whether an employee could have discovered the discrimination.  Instead, it 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, “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 longstanding 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 journalists before it was debunked.

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 much 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, something she inexplicably failed to do.