Ledbetter v. Goodyear Tire & Rubber Co.

How the President Can Foster the “Civil and Honest” Debate He Called For

by Hans Bader on January 17, 2011 · 1 comment

in Culture, Legal, Personal Liberty, Politics as Usual, Sanctimony, Zeitgeist

In his speech in Tucson, where federal Judge John Roll was murdered, President Obama said that “only a more civil and honest public discourse can help us face up to our challenges as a nation.” But the President himself has often failed to live up to this aspiration, as his dishonest attacks on the judiciary, and his long line of broken campaign promises, illustrate. (Obama’s broken promises include false claims that he would implement a “net spending cut,” not raise taxes on anyone making less than $250,000, and not prevent anyone from “keeping” their existing health coverage.)

Some of Obama’s attacks on the judiciary have just exaggerated the scope of Supreme Court decisions for political gain.  For example, he deceptively claimed that the Supreme Court’s First Amendment ruling in Citizens United, which allowed U.S. companies and unions to spend money on political ads, “reversed a century of law” to allow “foreign corporations” to “spend without limit in our elections.”  (In response, Justice Alito silently mouthed the words “not true” when Obama attacked the Supreme Court for this ruling at the State of the Union Address, at which the Justices were present as invited guests).  In reality, as I noted earlier, the Supreme Court’s ruling did not lift restrictions on foreign companies; it did not call into question the 1907 federal law banning corporate contributions to politicians; and it overturned only one past Supreme Court decision, the Supreme Court’s controversial, 5-to-4 decision in Austin v. Michigan Chamber of Commerce (1990), a ruling that deserved to be overturned because it was itself “at odds with prior precedent.”

But other times, Obama’s attacks have been completely false — such as his attacks on the Supreme Court’s decision in Ledbetter v. Goodyear, which were deeply misleading, as legal commentators like Stuart Taylor of the National Journal have pointed out.

Obama didn’t let facts get in the way of a good story, or milking a political wedge issue, when he signed into law his very first legislation, the Lilly Ledbetter Fair Pay Act, which overruled the Supreme Court’s decision in the Ledbetter case. (In that case, the Supreme Court enforced the 180-day deadline for bringing pay discrimination claims contained in the federal discrimination law with the shortest deadline, Title VII. Other laws, like the Equal Pay Act, have much longer deadlines, like 3 years).

Obama 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. (As Stuart Taylor notes, she brought her discrimination claim only after the supervisor she accused of discrimination had died, and shortly before she retired.)

The White House statement accompanying Obama’s claim made additional false claims about the Supreme Court’s ruling.  It dishonestly claimed that the Supreme Court ruled that an employer can avoid discrimination claims just by concealing discrimination for 180 days — a claim flatly at odds with language in the Supreme Court’s decision, like footnote 10.

In an assertion parroted by gullible reporters, it claimed that “The Court ruled that employees subject to pay discrimination like Lilly Ledbetter must file a claim within 180 days of the employer’s original decision to pay them less . . . even if the employee did not discover the discriminatory reduction in pay until much later (check out Justice Alito’s arguments in the Court’s opinion).”

That claim was knowingly false, since it was contradicted by passages in the very court decision the White House linked to.  First, the Court never said there was a rigid deadline that bars claims by employees who “did not discover” discrimination “until much later.” Ledbetter never argued that the deadline should be waived or suspended based on her employer concealing discrimination against her, because she in fact knew for years about the pay disparity she later sued over. If she truly had been in the dark about the alleged discrimination, she could have sought to take advantage of exceptions to the deadline that suspend it, like waiver, estoppel, and equitable tolling, under the Supreme Court’s decision in Zipes v. Trans World Airlines (1982). But she never made that argument, because, as she testified in her deposition, she had been told many years earlier that she was being paid less than the men she later claimed ought to have been paid the same as her.

Ledbetter did not even argue that the outcome of her case would be affected by an even broader extension to the deadline for employees who are unaware of the discrimination against them known as the so-called discovery rule. As the Supreme Court specifically noted in footnote 10 of its decision, “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 had long known of the facts underlying her discrimination claim, relaxing the deadline for employees who “did not discover” the discrimination until much later would have done her no good.

Thus, it was obviously wrong for the White House to claim that the Supreme Court was barring discrimination claims irrespective of whether “the employee did not discover the discriminatory reduction in pay until much later.”

Moreover, the Supreme Court expressly noted that the plaintiff could have pressed her claim instead under the Equal Pay Act, which had a longer deadline for suing (usually 3 years) and more generous rules for when the deadline starts running. But her lawyer foolishly failed to preserve that claim, which was a mistake, as he admitted to the Supreme Court. The Supreme Court responded by noting, “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.”

Lawyers like Paul Mirengoff have repeatedly chided Obama and the White House for telling tall tales about the Ledbetter case.   During the 2008 election campaign, both Obama and state democratic parties made false claims about the Ledbetter case, in order to use it as a political wedge issue — claims that were mindlessly parroted by some in the media.

A good first step for Obama in fostering “civil and honest” debate would be to engage in it himself, by no longer distorting court rulings for political gain.

Liberal Senators Make False Claims About Supreme Court’s Ruling in Ledbetter v. Goodyear, During Kagan Confirmation Hearings

by Hans Bader on June 30, 2010

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

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.

Obama One Year Later — A Legacy of Lies and Broken Promises

by Hans Bader on November 3, 2009

in Agriculture, Economy, Energy, Environment, Ethanol, Global Warming, Healthcare, Insurance, International, Legal, Natural Resources, Personal Liberty, Politics as Usual, Precaution & Risk, Sanctimony, Stimulus to Nowhere, Trade

It’s been a year since the president was elected, and he’s already piled up an impressive list of lies and broken promises.

The broken promises include his pledge to enact a “net spending cut,” his promise not to raise taxes on anyone making less than $250,000 a year, and his promise not to sign bills without first giving the public five days of notice.

The Congressional Budget Office says that Obama’s proposed budgets will explode the national debt through massive spending increases, increasing the already large deficits left behind by the Bush administration from $4.4 trillion to $9.3 trillion. His record-setting budgets flagrantly violate his promise to propose a “net spending cut.”

Obama broke his campaign promise not to raise taxes on anyone making less than $250,000 a year by signing into law a regressive excise tax increase to expand the SCHIP program, and by proposing a cap-and-trade energy tax that could charge up to $2 trillion, a massive cost that Obama himself has said will be passed “on to consumers,” as well as homeowners and motorists. (In 2008, Obama privately admitted to the San Francisco Chronicle that if he was elected, electricity bills would “skyrocket” under his administration, but it didn’t report that.)

He also broke his promise not to raise taxes by backing health-care bills that would impose a laundry list of new taxes on the middle class, including a tax on uninsured people.  Americans for Tax Reform earlier summarized the tax increases in ObamaCare: an individual mandate tax of $900 per individual or $3800 per family (if you don’t have health insurance); an employer mandate tax of $400 per employee if health coverage is not offered; an “excise tax on high-cost health plans”; a “medicine cabinet tax”; capping Flexible-Spending Accounts (FSA’s); abolishing most HSAs; and increasing tax penalties for HSAs.

The costly cap-and-trade energy bill supported by Obama would lead to big tax increases, administration officials privately have conceded, even though they publicly claim otherwise.  “Officials at the Treasury Department think cap-and-trade legislation would cost taxpayers hundreds of billion in taxes, according to internal documents circulated within the agency and provided to The Washington Times” by CEI.  It could raise household taxes by $1761 per year, equivalent to a 15 percent tax increase.   It would also result in “loss of steel, paper, aluminum, chemical, and cement manufacturing jobs.”  (Obama earlier admitted that “under my plan of a cap and trade system, electricity rates would necessarily skyrocket.”)

Although cap-and-trade backers claim it will cut greenhouse gas emissions, it may perversely increase them and also result in dirtier air, as well as harming forests and water supplies.   It would enrich politically-connected corporations, and result in massive destruction of the world’s forests.   By expanding ethanol subsidies and mandates, it would cause enormous “damage to water supplies, soil health and air quality.” Ethanol subsidies have already resulted in forests being destroyed in the Third World, and by diverting cropland to fuel production away from food production, they have already caused famines that have killed countless people in the world’s poorest countries.

Over and over again, Obama has broken his campaign promise to give the public five days of notice before signing bills into law, including his very first law, the trial-lawyer backed Lilly Ledbetter Fair Pay Act. Obama also repeatedly made false claims about the Supreme Court decision that the Ledbetter law overruled, misstating the facts of that case and how long it gives employees to sue over pay discrimination (the Court did NOT say that employees have to sue even before discovering discrimination).

Obama broke seven campaign promises dealing with transparency and clean government in signing the $800 billion stimulus package, much of whose contents were secret until shortly before Congress voted on it, and whose 1400 pages went unread by most Congressmen who voted on it.  (It repealed welfare reform and contained loads of welfare, pork, and waste, while wiping out jobs in the export sector.)

Obama’s broken promises are part of a larger pattern of dishonesty. Obama claimed his $800 billion stimulus package was needed to avert “irreversible decline.” But the Congressional Budget Office concluded before and after its passage that the stimulus package will actually cut the size of the economy in the long run. Obama’s budgets don’t add up, either, piling up $9.3 trillion in red ink, according to the Congressional Budget Office, a staggering $2.3 trillion more than Obama claimed.