Lilly Ledbetter Fair Pay Act

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.

Private Employers Cut 39,000 Jobs in September

by Hans Bader on October 7, 2010

in Deregulate to Stimulate, Economy, Employment, Energy, Environment, Global Warming, Healthcare, Labor, Legal, Regulation, Stimulus to Nowhere

The private sector shed 39,000 jobs in September.  Liberal journalists claim this was “unexpected.”  This reveals their shaky grasp of economics.

If you were an employer, why would you hire somebody in an economy that’s barely growing, when you could be hit by all sorts of employee-related expenses in the future, the way employers have already been hit by increased costs due to Obamacare?  Employers are worried about additional costs that could force them to lay off newly hired workers if Congress passes cap-and-trade global warming legislation (which would impose massive costs on many industries, requiring cutbacks in production).  Recent EPA rules aimed at global warming will wipe out at least 800,000 jobs, with a blizzard of additional new rules expected to follow.  And the stimulus package, despite its $800 billion cost, did little for employers, wiping out export-sector jobs, and funneling green-jobs money to foreign firms.  (The current weak “recovery” actually began in June 2009, before the stimulus package even began being spent.)

Thanks to steadily-expanding government red tape, every time you set a worker’s pay, or have to fire a lazy or incompetent employee, you now face the risk of being sued  (You are less likely to hire someone if you can’t fire them later if they turn out to be lazy or incompetent).  Employees who are fired for even good reasons often turn around and sue the employer for age, race,  sex, or disability discrimination, or for the “hostile work environment” they claim existed during their employment due to things like overheard remarks.  Getting meritless lawsuits tossed out is expensive — years ago, it was typically $25,000 on legal bills if the employer succeeded in getting rid of the lawsuit at the earliest possible stage (on a pre-trial motion to dismiss), $75,000 at the next stage (”summary judgment”), and $250,000 if the employer won at trial.  Under a legal double-standard called the Christiansburg Garment Rule, if the employer wins, the worker seldom has to pay the employer’s legal bills; but if the worker wins, the employer has to pay the worker’s legal bills as a matter of course (or even a multiple of the employee’s legal bills if the lawsuit is brought in some liberal states like New Jersey (see  Rendine v. Panzer (1995)).

You are much less likely to hire someone if you can’t avoid being sued by them later over the pay package you negotiated with them when they were hired.  That’s now a real possibility for employers.  Setting employee pay has gotten harder under the Obama administration due to the 2009 Lilly Ledbetter Fair Pay Act, the first law signed by President Obama, which essentially eliminates the deadline for bringing pay discrimination claims against employers, meaning that employees can wait many years after their pay is set, and sometimes even after they are fired, before bringing a lawsuit against their employer. (Some courts have even allowed employees to use the new law to challenge demotions many years after they occur, under the theory that their demotion indirectly affected their pay.) The Ledbetter Act was named after Lilly Ledbetter, who waited until she was about to retire before suing over alleged pay discrimination, meaning that the supervisor who allegedly discriminated against her was dead and unable to defend himself against discrimination charges by the time the jury decided her case.  (Ledbetter testified in her deposition that she knew of the pay disparity by 1992, but didn’t file a complaint with the EEOC until 1998).  The Ledbetter Act overturned the deadline applied by the Supreme Court in its 5-to-4 ruling against Ledbetter.

The Obama administration wants to make it even easier to sue for discrimination through bills like the Civil Rights Restoration Act and the Paycheck Fairness Act.  The Paycheck Fairness Act would require equal pay for some employees who do unequal work, and allow them to seek unlimited punitive damages against their employers.  Right now, most pay discrimination claims require a showing of unequal treatment (that is, intentional discrimination), although, under Title VII of the Civil Rights Act, big employers can be ordered to pay very limited amounts (back pay, not emotional distress or punitive damages) for certain practices or pay scales that have an unintentional “disparate impact” on women or minorities (like paying people more because they have a high-school diploma, if the job supposedly doesn’t really require a high-school diploma).  The Paycheck Fairness Act would import such standards into the Equal Pay Act, which covers even tiny employers (unlike Title VII), and subject them not merely to back-pay claims, but to uncapped punitive damages and claims for “emotional distress” over pay disparities.

It would require the employer to prove in court things that no tiny employer could ever afford the legal-fees to demonstrate.  Under the Paycheck Fairness Act, an employer would have to show an overriding “business necessity” and lack of any alternative to justify the use of certain factors “other than sex” in setting pay scales.  This is worrisome, because even under existing laws that allow lawsuits over “unintentional” discrimination, employers have been forced to spend hundreds of thousands of dollars on expert witnesses to show that a challenged practice was reasonable, only to have the courts say that that was not enough, that the practice had to be more essential (and more closely-related to technical requirements like “content validity” and “construct validity”).

Paycheck Fairness Act Would Mandate Equal Pay for Unequal Work

by Hans Bader on August 2, 2010

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

The Obama administration wants to force employers to pay some people equal amounts for doing unequal work, through a deceptive bill known as the Paycheck Fairness Act. “Male supermarket managers with college degrees couldn’t be paid more than female cashiers if the college degree for the manager wasn’t consistent with ‘business necessity,’” says economist Diana Furchtgott-Roth in a July 23 column in The Washington Examiner. The bill would also radically increase damage awards for what it labels as “discrimination.”

As I noted in a July 27 letter in response to her column,

Diana Furchtgott-Roth was right to criticize a bill that would require some people who do unequal work to be paid equal amounts. The perverse ‘Paycheck Fairness Act’ is indeed a bad idea. But her column understated the case by suggesting that ‘now,’ an employer found guilty of discrimination is only required to pay ‘back pay,’ not ‘punitive damages.’ Actually, employers already have to pay not only back pay but also damages up to $300,000 under Title VII of the Civil Rights Act. The so-called ‘Paycheck Fairness Act’ would eliminate the cap on punitive damages in gender-based pay discrimination cases, leaving the sky as the limit. Other provisions in this perverse bill could force employers to pay people who do nasty, dangerous, unpleasant jobs as little as those who do nice, pleasant ones, if the unpleasant jobs are performed mostly by members of one gender, and the pleasant ones mostly by the other gender. (Examiner, Pg. 20)

The supporters of the bill falsely claim it would simply treat gender-based pay discrimination the same as other pay-discrimination cases. Lazy journalists sometimes parrot this claim. But it is simply false, as I noted earlier.

The falsehoods may well succeed. In 2009, another bill known as the Lilly Ledbetter Fair Pay Act passed Congress based on false claims about what the Supreme Court held in a pay discrimination case known as Ledbetter v. Goodyear Tire & Rubber Co. (2007). In signing the bill into law, Obama himself misstated the facts and holding of that Supreme Court decision, and broke a campaign promise dealing with transparency in the process.

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.

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.

More Biased Press Coverage of the Supreme Court and Its Ledbetter Decision

by Hans Bader on December 6, 2009

in Legal, Personal Liberty, Politics as Usual, Sanctimony

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.

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.

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).

Obama: 100 Days of Lies and Broken Promises

by Hans Bader on April 24, 2009 · 4 comments

in Bailout Watch, Economy, Energy, Environment, Global Warming, Legal, Politics as Usual, Sanctimony, Stimulus to Nowhere

Obama has asked the big three networks to give him a free hour of air time on his hundredth day in office. They have said they’ll probably give it to him — not surprising if you consider all the support they gave him in the 2008 election.

One thing they probably won’t do is ask him any inconvenient questions about all his broken campaign promises, like 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. Obama has broken his campaign promises far more flagrantly than his predecessors did in their first 100 days in office.

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 a regressive SCHIP excise tax increase, 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).

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.

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.

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.

Blind to Obama’s Broken Promises

by Hans Bader on March 23, 2009 · 13 comments

in Bailout Watch, Economy, Politics as Usual, Sanctimony, Stimulus to Nowhere

In 2008, Obama promised a “net spending cut” (although he never did come up with cuts to offset his proposed spending increases). Obama broke this campaign promise in a big way with his proposed budget, which could bankrupt the United States, according to senior Senators.

Obama’s budget would increase spending levels so much that budget deficits would rise by $4.8 trillion to $9.3 trillion while taxes would increase by $1.9 trillion, according to the Congressional Budget Office.

Yet Obama’s campaign workers have apparently learned nothing from this. Across the country, they are now volunteering their time to lobby fellow citizens to support his budget. “It’s the change we all voted on,” said Althea Thomas of Evanston, Illinois. Well, it’s not the “change” that was sold to me by my Uncle Ernie, a California campaign worker for Obama. He didn’t say anything about trillions more in debt, and tried to get me to vote for Obama based on George Bush’s costly war in Iraq.

Obama has broken at least ten campaign promises, including seven promises in signing the economy-shrinking $800 billion stimulus package, and one promise in signing the Lilly Ledbetter law and the SCHIP tax increase.

After it covertly inserted language into the stimulus package to protect millions of dollars in bonuses at AIG, a major liberal donor, the Administration later switched course and sought to curry favor with an outraged public by praising the House for passing a 90 percent bonus tax, a tax broadened to cover not just AIG but also employees at other, healthy TARP banks. On March 22, the New York Times reported that the Administration wants to impose vague compensation limits on all banks and financial institutions, whether or not they receive any taxpayer money at all, and perhaps all public companies as well. To avoid stringent application of those limits, companies’ executives would have an incentive to curry favor with their federal masters, by making campaign contributions to Obama and his liberal Congressional allies (the way AIG did). Meanwhile, the Administration is now backtracking on its earlier praise for the legislation that would tax the AIG bonuses.

Obama claimed the $800 billion stimulus package was needed to avert “disaster” and “irreversible decline.” But the Congressional Budget Office, controlled by his own Congressional allies, admitted that the stimulus package will shrink the economy over the long run, in reports and studies released before and after the bill’s passage.

In other news, Obama nominated a former fundraiser for the left-wing group ACORN to serve as a judge on the Chicago-based Seventh Circuit Court of Appeals. ACORN, a beneficiary of the stimulus package, helped spawn the mortgage crisis by promoting “liar loans.” It has also engaged in extensive financial fraud and vote fraud. The Obama Administration has chosen ACORN to help conduct the 2010 census, which will be used to reallocate seats in Congress.

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