Ledbetter

Why Supreme Court Justice May Have Been So Annoyed at the President’s State of the Union Address

by Hans Bader on February 1, 2010

in Employment, Labor, Legal, Nanny State, Personal Liberty, Politics as Usual, Sanctimony

At the president’s recent State of the Union address, he misleadingly attacked the Supreme Court for supposedly “reversing a century of law“ restricting corporate spending on political campaigns in its ruling this month in Citizens United v. FEC.

In response, an annoyed Supreme Court Justice Samuel Alito, who was attending the speech as an invited guest, apparently mouthed the words “not true,” although his words were not audible and did not interrupt the president’s speech.  (Obama was criticizing a Supreme Court ruling that struck down a recent federal restriction on corporations’ ability to criticize politicians.  The ruling, which was based on the First Amendment, said it was not invalidating a century-old 1907 law that bans corporations from making donations to politicians, who have long leaned on corporations to give money to their pet causes.  The ruling also did not lift restrictions on foreign corporations.  I earlier explained in the New York Times why corporations logically do have free speech rights.)

Maybe Justice Alito’s annoyance was cumulative, and based as much on the president’s past lies about an earlier Supreme Court ruling authored by Alito, as on his misleading criticism of the Supreme Court’s recent ruling.   Past lies make later falsehoods seem less like innocent mistakes.

In his 2008 campaign, and again in 2009, Obama criticized Justice Alito’s decision in Ledbetter v. Goodyear, which did not, contrary to the president’s claims, create a rigid 180 day deadline for bringing pay discrimination claims after an employee’s pay is set, regardless of whether the worker couldn’t have discovered the discrimination until years later.  (The deadline was 180 days, with various common-sense exceptions for hoodwinked employees, under one federal law, called Title VII.  But it is generally three years under another federal law, the Equal Pay Act, that also has more generous accrual rules.  Most employees could evade the short deadline of Title VII simply by having the sense to sue under the Equal Pay Act as well.  Alito’s ruling left workers with ample time to sue over discrimination, contrary to what Obama claimed.  Lilly Ledbetter lost her discrimination case because she waited until 1998 to file a complaint, despite admitting in her deposition that she knew her pay was low by 1992.)
I documented this in my commentary about the Supreme Court last year.  National Journal’s Stuart Taylor (a critic of the Supreme Court’s recent ruling in favor of corporations), and lawyers Paul Mirengoff and Ed Whelan, also described how Obama repeatedly distorted what the Supreme Court said in the Ledbetter case.

Franken Uses Inflammatory Rape Claim to Destroy Arbitration of Employment Disputes, Including Disputes Totally Unrelated to Rape

by Hans Bader on October 20, 2009 · 1 comment

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

Recently, the Senate voted to ban defense contractors — that is, much of American business — from contractually mandating arbitration of employment discrimination disputes.  The bill’s sponsor, Al Franken (D-Minn.), pushed the bill by claiming that arbitration provisions in an employment contract kept Jamie Leigh Jones from suing her alleged rapists.  But they didn’t: a federal appeals court ruled the arbitration provisions didn’t apply to Jones’ case, leaving her free to sue in court.

Franken’s amendment to a defense appropriations bill banned contractors from requiring arbitration of employment discrimination disputes and sexual assault cases, including “arbitration” of “any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment.”  The language about sexual assault was irrelevant to most employers: Lawsuits against employers for employment discrimination vastly outnumber lawsuits over sexual assault, which are a tiny fraction of all court cases, so the bill’s real purpose was to ban arbitration of discrimination cases, not to do anything for rape victims.  Few rapes occur in the workplace, as opposed to private settings like homes; and even rapes that do occur in the workplace often fall outside the scope of arbitration clauses.  (Arbitration does not, of course, prevent criminal prosecution.)

Liberal trial lawyers have long objected to Supreme Court decisions like its 7-to-2 Gilmer decision upholding contractual provisions that require binding arbitration of employment discrimination cases, even though arbitrators often rule in favor of employees and consumers, and award them substantial monetary damages (although they do permit plaintiffs less discovery than courts do; on the other hand, arbitration typically results in “lower litigation costs and expenses“).   Franken’s amendment largely fulfills their fantasy of banning arbitration in discrimination cases.

Although Franken’s amendment has a big effect on discrimination cases — and no effect at all on most rape cases — it has been falsely described ever since as an “anti-rape amendment,” and the 30 senators who voted against the amendment have been depicted ever since by liberal sites such as Huffington Post as the “Republicans for Rape“  — even though the Defense Department opposed Franken’s amendment, and even though Senators like Bob Corker said they might have voted for the amendment had it merely covered rape and violence claims, rather than a vast array of unrelated employment disputes.

Jon Stewart, for example, depicted the amendment as being all about rape, asking his viewers “How is ANYONE against this?” and suggesting that only a nut or a misogynist could do so.  (This is the same Jon Stewart who selectively edits taped interviews to make conservatives look stupid, or make them appear to say the opposite of what they actually said).  But the liberal Stewart has aimed this criticism only at conservative lawmakers, not at the Obama Defense Department (or the liberal Supreme Court justices who voted with their conservative colleagues to allow all employment disputes, including those involving sexual assault, to be governed by contractual arbitration provisions in the Gilmer case).  So has Huffington Post, whose first inflammatory article on the vote generated over 2000 comments, many of them angry and vituperative.  The inflammatory coverage has resulted in Senators who voted against the amendment receiving hate mail and angry and hateful messages.

Liberal journalists and bloggers complain a lot about the use of so-called “wedge issues,” but they themselves are the ones who typically use inflammatory wedge issues, as the Franken amendment illustrates.

Another example is the many false claims made by liberal journalists and Obama about the Supreme Court’s decision in Ledbetter v. Goodyear, a subject I addressed at length here.  In the Ledbetter case, the press claimed that the Supreme Court had created a rigid 180 day deadline for suing over pay discrimination — when in fact it did no such thing.

By the way, studies show that Jon Stewart’s viewers aren’t any smarter than Bill O’Reilly’s — contrary to what liberal journalists believe.

Biased Press Coverage of the Supreme Court Fuels Leftist Resurgence

by Hans Bader on September 26, 2009

in Employment, Environment, Global Warming, Legal, Odds & Ends, Politics as Usual

American law has moved in a leftward direction over the last 20 years, steadily restricting use of the death penalty and criminal sentencing, and expanding lawsuits against businesses, thanks largely to the Supreme Court.

But to some left-leaning journalists who write about the Supreme Court, none of this has ever happened, and the Supreme Court, which is responsible for many of these liberal changes, remains a conservative boogeyman.

Slate‘s Dahlia Lithwick, America’s most famous Supreme Court reporter, writes today that in the Supreme Court, “big business always prevails, environmentalists are always buried, female and elderly workers go unprotected, death row inmates get the needle, and criminal defendants are shown the door.”

This is breathtakingly inconsistent with reality. Over the last dozen years, the death penalty has been dramatically cut back in cases like Roper v. Simmons (2005), as the Supreme Court has invalidated the death penalty when imposed on the “retarded” (even the mildly retarded) or juveniles (even 16 to 18 year-olds), or when imposed by judges rather than juries (as state laws long provided).

The Supreme Court overturned thousands of sentences given to criminal defendants in cases like U.S. v. Booker (2005), based not on their guilt or innocence, but on the fact that judges, rather than juries, had made findings related to those sentences (the so-called Booker/Apprendi line of cases). The supposedly “right-wing” justices Roberts, Scalia, and Thomas joined in these decisions.

Environmentalists won many cases, including perhaps the most economically-significant decision ever — Massachusetts v. EPA (2003) — which potentially opened the door to EPA regulation of virtually every human activity, on the grounds that virtually all activity (from industrial production to farming to cars) emits carbon dioxide and thus allegedly causes global warming. That decision also created a special rule of standing to allow state attorneys general to bring lawsuits that would otherwise be thrown out as meritless for lack of standing.

The Supreme Court recently allowed businesses to be sued even for products the FDA deems to be safe and effective, in Wyeth v. Levine (2009).

The Supreme Court progressively expanded businesses’ liability for discrimination against female and elderly workers. It continuously expanded the definition of sexual harassment, overturning earlier limits on vicarious liability (in Faragher v. Boca Raton (1998)), allowing institutions to be sued based on the acts of non-employees (in Davis v. Monroe County (1999)), and rejecting longstanding lower-court limits on lawsuits where there is no economic or psychological harm (in Harris v. Forklift Systems (1993)). It also allowed businesses to be sued for discrimination against elderly workers even absent any showing of discriminatory intent or differential treatment (in Smith v. Jackson (2005)). All of these decisions reversed lower court rulings in favor of businesses.

In short, Dahlia Lithwick’s perception of the Supreme Court bears no relation to reality. But it is shared by most of the nation’s leading court reporters, at publications like the New York Times, the Washington Post, USA Today, and the Los Angeles Times, who promote a similar caricature of the Supreme Court.

As a result of such reporters ceaselessly peddling this perspective to their readers, it is also the perception of much of the newspaper-reading public, especially in the so-called Blue States, many of whom view the Supreme Court as “too conservative.”

For example, factually inaccurate and dishonest reporting on recent Supreme Court decisions also contributed to recent election results.

A classic example is the Supreme Court’s recent Ledbetter decision, which many reporters wrongly claimed required discrimination plaintiffs to sue within a rigid 180-day deadline — when in fact, most pay discrimination cases could legally be brought for at least 3 years after the discrimination allegedly occurred, under laws unaffected by the Supreme Court’s decision (like the Equal Pay Act), and the 180-day deadline, even when applicable, had lots of common-sense exceptions to keep employers from escaping justice (such as tolling to protect hoodwinked employees)

(Regardless of whether the death penalty is good or bad, it is very clear that it is not unconstitutional).

Economists Give Obama Failing Grade; New Bailouts Demanded As Obama Breaks Promises

by Hans Bader on March 12, 2009 · 2 comments

in Bailout Watch, Economy, Employment, Labor, Politics as Usual, Precaution & Risk, Regulation, Sanctimony, Stimulus to Nowhere

Obama gets a failing grade from economists. “U.S. President Barack Obama and Treasury Secretary Timothy Geithner received failing grades for their efforts to revive the economy from participants in the latest Wall Street Journal forecasting survey.”

Not content with the $8 trillion the Obama Administration has already committed for bailouts, pork, and welfare, Treasury Secretary Geithner, who was confirmed by the Senate despite cheating on his taxes, wants to spend $100 billion on IMF loans to bail out struggling nations in Eastern Europe and elsewhere — even though many European “officials doubt the wisdom of falling deeply into debt to create jobs and halt the plunge in consumer demand, as the United States is doing.”

Wal-Mart’s stock rating has been downgraded due to the possible passage of card-check legislation supported by Obama, which could lead to “diminished workforce flexibility” and pay based on “seniority” rather than merit, as a result of compulsory arbitration provisions contained in the bill. (The bill could also lead to intimidation of workers). The stock market has also fallen this year as investors have become disenchanted with the Administration.

The Federal Government may face increasing calls to bail out state governments, which have run up trillions of dollars in unfunded, and incredibly generous, pension liabilities to state employees in contracts negotiated with their unions using deliberately-deceptive accounting.

Obama broke his campaign promise to curb earmarks by signing a bloated, $410 billion appropriations bill that contained 8,500 earmarks totaling $7.7 billion. It also broke his campaign promise of a “net spending cut.”

Obama broke seven campaign promises dealing with transparency and clean government in signing the economy-shrinking, $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.

Earlier, Obama repeatedly broke his promises not to sign bills without first giving the public five days to comment. “Too often bills are rushed through Congress and to the president before the public has the opportunity to review them,” Obama’s campaign Web site stated. “As president, Obama will not sign any nonemergency bill without giving the American public an opportunity to review and comment on the White House Web site for five days.”

But Obama has repeatedly signed laws without providing such notice, such as the Ledbetter Fair Pay Act, his very first law, which he signed less than 2 days after it was passed by the House, with no opportunity for comment. Moreover, in signing the Ledbetter law, Obama made false claims about both the facts of the Supreme Court case that the Ledbetter law overturned, and what the Supreme Court actually held in that case.

The Washington Post‘s David Ignatius, finally losing patience with Obama, criticizes the Administration’s focus on anything but fixing the economy’s underlying ills, calling its economic policies a “phony war” characterized by economic “mismanagement.” “Economist David Smick had it right in The Post this week when he said the administration had a three-pronged strategy: delay, delay and delay. The administration announces a rescue package but doesn’t deliver details; it promises budget discipline but saves the hard decisions for later,” while stacking the Obama “administration with politicians and former government officials,” who lack “experience managing large organizations in crisis.”

Like us, Michael Barone says that the Treasury Department and Fed Chairman Ben Bernanke, through their arbitrary, “ad hoc” approach to the financial crisis (such as their unpredictable and inconsistent decisions about which companies to bail out), have exacerbated the current financial crisis by leaving “players in the financial markets full of uncertainty and fear.”

Distorting the News, to Obama’s Advantage: Ledbetter v. Goodyear and the Lilly Ledbetter Fair Pay Act

by Hans Bader on March 4, 2009

in Employment, Labor, Legal, Politics as Usual

Distorted press coverage of a Supreme Court decision gave a big boost to the Obama campaign, which made the decision a major campaign issue by bashing and distorting it. The New York Times has since refused to correct its erroneous coverage of that decision, refusing to even read relevant portions of the very decision on which it reported, and court documents in the case, which plainly contradict its coverage. The Obama Administration and Obama campaign also made easily verifiable false claims about the decision, about which the press seems to have no interest. As legal commentator Stuart Taylor has noted, press coverage of the decision stank.

In Ledbetter v. Goodyear (2007), the Supreme Court held that a woman who had waited more than five years after learning of pay disparities to file an EEOC complaint, and more than a decade after her pay was allegedly set lower than her male peers, could not later sue for discrimination under a civil-rights law known as Title VII, since that law has a 180-deadline. In its ruling, the Court held that plaintiffs generally must sue within 180 days after a discriminatory pay level is set, and that it is not enough that the plaintiff sued within 180 days after a subsequent paycheck or pension benefit affected by the discrimination, which could be many, many years later.

The court specifically left open, however, the possibility that a plaintiff could sue more than 180 days after the discriminatory pay decision if the plaintiff did not discover that the decision was discriminatory until much later. In footnote 10 of its decision, it 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.”

Despite that fact, however, New York Times reporter Linda Greenhouse falsely reported that the 180-day deadline “applies, according to the decision, even if the effects of the initial discriminatory act were not immediately apparent to the worker.” See Linda Greenhouse, “Justices Ruling Limits Suits on Pay Disparities,” New York Times, May 30, 2007.

Although the plaintiff, Lilly Ledbetter, had admitted in her deposition that she had been informed by 1992 of the pay disparity she later sued over, and had cited it herself to her boss by 1995, Greenhouse also falsely claimed that the Supreme Court rejected Ledbetter’s claim because “she learned of her fate” at the end of her career, “too late, according to the Supreme Court’s majority.”

Despite the fact that the Supreme Court had explicitly left open the possibility that Ledbetter could have sued if she hadn’t known about the discrimination against her, other New York Times reporters, relying on Greenhouse, stated just the contrary. For example, Adam Liptak stated that “Ms. Ledbetter lost her case because she had discovered the disparity between her pay and that of her male colleagues too late.” See Liptak, “Justices Hear Bias Case on Maternity, Pensions, and Timing,” New York Times, Dec. 11, 2008, at pg. B7. And Sheryl Gay Stolberg similarly stated that Ledbetter discovered only “when she was nearing retirement that her male colleagues were earning much more than she was.” See Stolberg, “Obama Signs Equal-Pay Legislation,” New York Times, January 29, 2009.

Other papers, such as the Los Angeles Times, made more extreme, and obviously false, claims about the decision. The Los Angeles Times falsely claimed that under the Ledbetter ruling, “any employer that could hide discrimination for six months could get away with it.” And the Pittsburgh Post-Gazette erroneously stated that Lilly Ledbetter was not allowed to sue more than 180 days after her first unequal paycheck even though “she did not know she was being discriminated against until near the end of her career when she sued.” And the Washington Post incorrectly claimed that the decision “limited Ledbetter’s ability to sue after she discovered that Goodyear had been paying higher salaries to her male counterparts for nearly 20 years.” See Editorial, “The Lilly Ledbetter Fair Pay Act Is Back,” Los Angeles Times, Jan. 10, 2009; Editorial, “Lilly’s Cause: Obama Can Correct An Injustice of the Bush Years,” Pittsburgh Post-Gazette, Jan. 12, 2009; Richard Leiby, “A Signature with the First Lady’s Hand on It,” Washington Post, Jan. 30, 2009, at C1.

But as even the liberal employment lawyer David Copus, who brought landmark pay discrimination lawsuits for the EEOC, has noted, Ledbetter suspected for years that she was discriminated against, and the Supreme Court left intact employees’ ability to sue when employer deception leaves employees unaware of discrimination against them. See Davis A. Copus, “Pay Discrimination Claims After Ledbetter,” Defense Counsel Journal, Volume 75, page 300 (Oct. 1, 2008).

As Copus notes, “Ledbetter admitted at her deposition that ‘different people that [she] worked for along the way had always told [her] that [her] pay was extremely low.’ She recalled that her manager told her in 1992 that her pay was lower than that of other Area Managers, and that by 1994 or 1995, she had learned the amount of the difference. In 1995, Ledbetter told her supervisor that she ‘needed to earn an increase in pay’ because she ‘wanted to get in line with where [her] peers were, because . . . at that time [she] knew definitely that they were all making a thousand [dollars] at least more per month.’” Yet she waited to sue until shortly before she retired, and after the supervisor she accused of discrimination died!

As legal commentator Stuart Taylor observed in the National Journal, “Ledbetter waited more than five years after learning that she was paid substantially less than most male co-workers to file her Title VII claim.” See Stuart Taylor, “Does the Ledbetter Law Benefit Workers, or Lawyers? Democrats and the Media Have Distorted the Facts Underlying the New Equal Pay Law,” National Journal, Jan. 31, 2009.

Given Ledbetter’s tardiness and longstanding knowledge that she might have been discriminated against, her lawyer didn’t even claim that she could take advantage of the Supreme Court’s exceptions to the deadlines for workers whose employers conceal evidence of discrimination, leaving them unaware of discrimination, such as “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”).

When I, a lawyer with expertise in discrimination claims, sent an email to the New York Times noting its inaccurate reporting, and citing its conflict with Ledbetter’s deposition, and the writings by legal commentators like David Copus and Stuart Taylor, I received an email in response from senior editor Greg Brock, claiming that the New York Times’ reporting couldn’t possibly be wrong. Why? Because so many other newspapers had made the same claims the New York Times did, and because its reporting was consistent with the self-serving claims that the plaintiff Ledbetter later made (with no evidence whatsoever) — never mind that those claims were inconsistent with plaintiff Ledbetter’s own admissions in her deposition, and inconsistent with what the Supreme Court said in its decision! Apparently, the pervasiveness of a media error makes it unquestionable.

In his January 30 email, Mr. Brock wrote:

“I do not know where Mr. Taylor came by his information. But if you do your research, you will see that dozens of news organizations have consistently reported the following background on the Ledbetter case:

Lilly Ledbetter worked for Goodyear for 19 years before accepting an early retirement offer in 1998. Shortly before she left Goodyear, Ledbetter received an anonymous memo revealing that the other shift supervisors with the same title and the job responsibilities she had, were paid between 14-30% more than she was earning. The decision to pay Ledbetter less than her male co-worker had been made years earlier by a supervisor who did not believe women belonged at Goodyear, and certainly not working as supervisors. Until Ledbetter got this memo, she did not know she had been shortchanged all those years. Ledbetter sued, and in the course of the lawsuit, Goodyear’s records confirmed the anonymous tip — the sole woman supervisor was paid far less than the men in the same positions.

The following statement was also presented by Ms. Ledbetter in testimony before Congress, when she explained:

‘I only started to get some hard evidence of what men were making when someone anonymously left a piece of paper in my mailbox at work, showing what I got paid and what three other male managers were getting paid. I thought about just moving on, but in the end, I could not let Goodyear get away with their discrimination. So I filed another complaint with the EEOC in 1998. After I filed my EEOC complaint and then filed a lawsuit, I was finally able to get the whole picture on my pay compared to the men’s. It turned out that I ended up getting paid what I did because of the accumulated effect of pay raise decisions over the years.’

She retired in 1998. So this shows that she did indeed learn the story not long before her retirement.”

This is not the only error made by the Times. As the Wall Street Journal’s James Taranto has pointed out, the Times falsely suggested, contrary to all evidence, that the Ledbetter decision was the result of a supposedly pro-plaintiff female justice — Sandra Day O’Connor — being replaced by a supposedly pro-defendant male justice — Samuel Alito. Linda Greenhouse, the Times’ Supreme Court reporter, claimed that the 5-to-4 decision “showed the impact of Justice Alito’s presence on the court. Justice Sandra Day O’Connor, whom he succeeded, would almost certainly have voted the other way, bringing the opposite outcome.”

In reality, Justice Sandra Day O’Connor was at least as tough in enforcing deadlines for suing against discrimination plaintiffs as the male justice who replaced her, Samuel Alito. She had dissented against the Supreme Court’s earlier generous interpretation of the statutory deadline for sexual and racial harassment plaintiffs in the case of National Railroad Passenger Corporation v. Morgan, 536 U.S. 101 (2002), arguing that the deadline as interpreted by Justice Clarence Thomas’s majority opinion was too generous to plaintiffs.

By contrast, on the Third Circuit Court of Appeals, then-judge Alito, prior to his elevation to the Supreme Court, had argued for a more generous interpretation of the deadline for suing under another discrimination law, 42 USC 1981, arguing it should be expanded to four years (see Zubi v. AT&T, 219 F.3d 220 (3d Cir. 2001)) — a position that conflicted with some federal court rulings, but was ultimately upheld by the Supreme Court in Jones v. R.R. Donnelley & Sons, 541 U.S. 369 (2004).

In signing his first bill into law — a bill to override the Supreme Court’s Ledbetter decision — 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.

Similarly, the White House falsely 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).”

This is misleading, and perhaps knowingly so, since the White House linked to the very court decision it distorts. 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 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, 451 U.S. 385, 398 (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.

Nor did she argue that the outcome of her case would have been changed if the Supreme Court recognized an even broader extension to the deadline for employees who are unaware of the discrimination against them, the so-called discovery rule. As the Supreme Court specifically 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 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.

But in the 2008 election campaign, Obama and state democratic parties falsely claimed that the Supreme Court had created a rigid 180-day deadline for bringing discrimination claims, regardless of whether the employer conceals evidence of discrimination. The 2008 campaign featured TV ads from Obama, and mass mailings by state Democratic Parties, falsely claiming that McCain backed wage discrimination against women, simply because he did not support a bill to override the Supreme Court’s Ledbetter decision. Amazingly, the McCain campaign did almost nothing to counter those attacks.

Press coverage suggesting that the Ledbetter decision created a rigid 180-day deadline for pay discrimination claims was also faulty because it ignored the fact that the 180-day deadline only applies to plaintiffs who choose to sue only under the law with the shortest deadline, Title VII. Pay discrimination claims can also be brought under the Equal Pay Act, which has a longer three-year deadline for most claims, and more generous accrual rules as well. And race discrimination claims can be brought under 42 USC 1981, which has a long four-year deadline.

The Supreme Court specifically noted that the plaintiff could have sued instead under the Equal Pay Act, observing that plaintiff “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.” Plaintiff Ledbetter’s lawyer admitted to the court that he had goofed by failing to press her claim under that law.

In short, it wasn’t the Supreme Court that prevented Ledbetter from suing: it was her own incompetent lawyer, and her own tardiness in suing after she learned of the pay disparities she claimed were discriminatory.

[CORRECTION, March 5: In the original version of this post, I overstated the case in the last sentence of the first paragraph. The journalism professor I quoted was paraphrasing legal commentator Stuart Taylor as saying that the coverage "stank," and although he praised Taylor's assessment as backed by "convincing facts," he did not say that he himself believed that the coverage stank. I apologize for the error].

White House Distorts Ledbetter v. Goodyear Ruling, in Backing Lilly Ledbetter Fair Pay Act

by Hans Bader on January 27, 2009 · 2 comments

in Legal, Politics as Usual

The White House is making false claims about the Supreme Court’s Ledbetter v. Goodyear decision. 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).

The White House claims 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).”

This is misleading, and perhaps knowingly so, since the White House links to the very court decision it distorts. 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 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, 451 U.S. 385, 398 (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.

Nor did she argue that the outcome of her case would have been changed if the Supreme Court recognized an even broader extension to the deadline for employees who are unaware of the discrimination against them, the so-called discovery rule. As the Supreme Court specifically 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 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 is wrong for the White House to suggest that the Supreme Court sought to bar claims irrespective of whether “the employee did not discover the discriminatory reduction in pay until much later.”

Second, the Supreme Court expressly noted that the plaintiff could have pressed her claim instead under the Equal Pay Act, which has a longer deadline for suing (usually 3 years) and perhaps more generous accrual rules. 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 that “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.”

The Obama campaign and state democratic parties spent much of the 2008 election season attacking the Supreme Court for supposedly creating a rigid 180-day deadline for pay discrimination claims. Those claims were false.

The fact that the Supreme Court rejected Ledbetter’s claim as untimely should not have been a shock to anyone, given that she waited until shortly before she retired to sue, after the supervisor she accused of discrimination had died.

Last Minute Smear in Virginia?

by Hans Bader on October 22, 2008 · 3 comments

in Economy, Legal, Politics as Usual, Sanctimony

Lies multiply in election years.  Legal commentator John Rosenberg notes that he “received in the mail today a glossy, large flyer from the ‘Democratic Party of Virginia’ saying, with many incorrect examples, that ‘John McCain opposes equal pay for women.’” 

In reality, neither McCain nor Obama has ever suggested that equal pay for women is a bad idea.  Instead, they disagree on what the legal deadline should be for bringing pay discrimination claims.  Obama just thinks the deadline for suing should be longer than McCain does.

Every employment lawyer knows that equal pay is already mandated by federal law, and that employees can sue over pay discrimination years after it happens.  An employee can sue both under the Equal Pay Act, which has a three-year deadline, and under Title VII, which has a 180-day or 300-day deadline (depending on the state).  Moreover, these deadlines can be extended when appropriate under a doctrine known as “equitable tolling.”

In Ledbetter v. Goodyear, the Supreme Court, in a divided 5-to-4 decision, applied the Title VII deadline rigorously, holding that the deadline runs from the date of the first paycheck affected by the discrimination — even if future paychecks are affected by the discrimination, too.  (The plaintiff in Ledbetter could have sued instead under the Equal Pay Act, which had a longer deadline.  Instead, the plaintiff inexplicably sued only under Title VII — and waited to sue until long, long after she suspected discrimination).  Four dissenting justices argued the deadline should run only from the last paycheck or pension benefit affected by the discrimination — even though that could result in an employer being sued decades later, even after the supervisor who originally set the pay has retired or died.

Obama agrees with the four dissenters, who argued that the deadline should run from the last paycheck affected by the discrimination, and has supported legislation, called the “Lilly Ledbetter Fair Pay Act,” to override the Supreme Court’s decision.

By contrast, McCain’s view is closer to that of the Supreme Court’s majority, and he has opposed the bill to overturn the Supreme Court’s Ledbetter decision, viewing it as opening the floodgates to litigation and stale claims. 

Regardless of whether Obama or McCain has the better argument, McCain’s position is certainly consistent with a Supreme Court ruling – and is not a basis for claiming that “McCain opposes equal pay for women,” as the Virginia Democratic Party claims.  (Many eminent employment lawyers, like Ross Runkel, predicted the Supreme Court’s decision, and considered it a logical outcome of the Court’s own past precedents.  The decision didn’t surprise me, either.  As a lawyer, I used to handle discrimination claims, and later worked at the Office for Civil Rights in the U.S. Department of Education.).