Legislating the Lilly Ledbetter lie, by Paul Mirengoff
Powerline Blog, January 28, 2009 at 1:31 PM
President Obama is set to sign into law, as the first legislation of his tenure, the so-called Lilly Ledbetter Act. It changes the rules for bringing lawsuits for alleged pay discrimination, enabling plaintiffs to bring stale claims, as Ledbetter herself attempted to do.
It is fitting that this law will be the first legislative product of the Obama presidency, for it is based on a lie. I demonstrated this last year in a post called "Lilly Ledbetter, Living a Lie."
The Lilly Ledbetter lie is today peddled in this Washington Post story, which suggests that she had no idea she was the victim of pay discrimination until she supposedly received an anonymous note tippling her off. So is the White House. (Hat tip, Openmarket.org.)
In honor of the occasion, I have re-posted my piece on Lilly's lie:
Lilly Ledbetter, the unsuccessful plaintiff in an equal pay case that went to the Supreme Court, has become ubiquitous this political season. She spoke at the Democratic National Convention, has testified in congressional hearings, and appears in an ad for Barack Obama. Congress is considering legislation that bears her name. The Washington Post, in a piece by Matthew Mosk, reverentially described her as "the Alabama woman whose fight for equal pay led her to the United States Supreme Court and inspired. . .fair pay legislation."
Not since the equally alliterative and industrial-sounding Rosie the Riveter, has a working woman become such a folk hero. But like Rosie, the Lilly Ledbetter being presented for public consumption is largely mythical.
The real Lilly Ledbetter worked for Goodyear Tire & Rubber Company from 1979 until she retired in 1998. After she retired, she sued Goodyear under Title VII of the Civil Rights of 1964 for alleged pay discrimination.
Ledbetter's pay discrimination claim went to a jury which found in her favor. However, the court of appeals reversed this verdict on the grounds that she did not file a charge of discrimination with the EEOC within the required statute of limitations period.
In her appeal to the U.S. Supreme Court, Ledbetter raised the following issue: "Whether and under what circumstances a plaintiff may bring an action under Title VII. . .alleging illegal pay discrimination when the disparate pay is received during the statutory limitations period, but is the result of intentionally discriminatory pay decisions that occurred outside the limitations period."
Ledbetter framed the issue this way because she did not claim that the relevant Goodyear decisionmakers acted with discriminatory intent during the limitations period. Instead, she asserted that the paychecks she received during this period were unlawful because they would have been larger if she had been treated in a nondiscriminatory manner prior to the limitations period.
In other words, the alleged intentional discrimination had occurred years earlier, outside of the limitations period. But Ledbetter felt its ongoing consequences every time she received a paycheck, until the end of her career, because her pay never caught up to where she believes it would have been absent the early discrimination. An employee's pay at any given point in time is typically a function of years of pay decisions.
The Supreme Court agreed with the court of appeals that Ledbetter's challenge to pay decisions that pre-dated the limitations period was time-barred. In doing so, the Court correctly applied three decades of its own precedent in cases where Title VII plaintiffs have attempted to rely on the current effects of past discrimination to defeat a statute of limitations defense.
The Court also emphasized the common sense proposition that stands behind these decisions: in discrimination cases "the employer's intent is almost always disputed and evidence relating to intent may fade quickly with time." Thus, an employee who waits until years after the underlyng alleged intentional act of discrimination to sue, as Ledbetter did, undermines the ability of the justice system to conduct a fair trial. For example, by the time Ledbetter brought her case to trial, the supervisor whose decisions formed the main basis for her pay discrimination claim was dead.
There is, of course, nothing novel in the Supreme Court's reasoning. Statute of limitations period exist precisely to prevent the injustice inherent in situations where a plaintiff "sleeps" on his or her rights for years.
Ledbetter and her Democratic fan club argue, however, that the result in her case permits hidden discrimination. They would have the public believe that the Ledbetter decision leaves plaintiffs who don't discover concealed discrimination for many years unable to overcome the statute of limitations defense, and thus unable to remedy wrongdoing.
This is nonsense. For decades the Supreme Court has recognized that the limitations period in a Title VII case can be extended or tolled in such circumstances. Tolling is available where, among other situations, the plaintiff has no reason to suspect discrimination at the time of the disputed event.
But Ledbetter did not argue that the limitations period should be tolled in her case, and for good reason. 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.
This delay is particularly difficult to understand given the fact that, in 1982, she had filed a sexual harassment complaint with the EEOC. That dispute was settled without litigation shortly thereafter. Had Ledbetter followed the same course with her pay claim, she would have had her day in court, and Goodyear would have had a fair chance to defend itself. That this did not occur is Ledbetter's fault.
Prevented by the facts from arguing in a real court that she didn't have enough knowledge about her pay situation to bring a timely EEOC charge, Ledbetter (and those who seek political advantage through her) now raise this false claim in the court of public opinion. For example, Ledbetter claims that "the only way that I really knew [about the pay discrimination] was that someone left an anonymous note in my mailbox showing my pay and the pay for the three males who were doing the same job, just on different shifts." According to Ledbetter, "when I saw that note, it just floored me. I was so shocked at the amount of difference in our pay for doing the same exact job. And I went immediately to EEOC."
This claim, of course, cannot be reconciled with her sworn testimony that three years before allegedly receiving the "anonymous note," she told her supervisor that she definitely knew that she was making thousands less than her male counterparts for the same work.
Lilly Ledbetter is living a lie, one that Barack Obama hopes will help propel him into the White House.
Wednesday, January 28, 2009
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'Injustice 5, Justice 4', by Stuart Taylor Jr.
ReplyDeleteThe media's portrayal of a May 29 Supreme Court ruling on sex-based pay discrimination was way off the mark.
The Atlantic, June 12, 2007
http://www.theatlantic.com/doc/200706u/supreme-court-sexism
This headline, borrowed from a New York Times editorial, pretty well sums up the news media's portrayal of a May 29 Supreme Court ruling that an Alabama woman suing her former employer for sex-based pay discrimination had not filed her claim within the congressionally prescribed time limit.
In The Times, that headline could only refer to one grouping: The usual four conservatives plus sometime-conservative Justice Anthony Kennedy voting down the usual four liberals. With Bush-appointed Justice Samuel Alito writing the majority opinion, and Clinton-appointed Justice Ruth Bader Ginsburg reading her dissent from the bench and urging Congress to "correct" the Court, this rather technical case, Ledbetter v. Goodyear Tire & Rubber, instantly became a magnet for media moaning of the barbarians-at-the-gate genre.
"The Supreme Court struck a blow for discrimination this week," The Times began. The Court "has read the law so rigidly that it has misread life," chimed in the Los Angeles Times. The Washington Post's front-page news report devoted (by my count) four paragraphs to the nuts and bolts of the decision, four and a half paragraphs to the majority's analysis and supportive quotes, and 17 and a half paragraphs to Ginsburg, her dissent, and other critics. "A harsh and rigid reading of the law ... striking for its lack of empathy," Ellis Cose complained in Newsweek. He seconded the American Civil Liberties Union's charge that this was an "astonishing decision" by an "activist court."
Are Alito and company really such heartless, pro-discrimination brutes? Hardly. Ginsburg's dissent was well put. But Alito had the better of the argument as to congressional language and the Court's own precedents, in my view. And as a policy matter, it's far from clear that justice would be better served by the Ginsburg approach of opening the door wide to employees who, like the plaintiff in this case, wait for many years to claim long-ago—and thus difficult to disprove—pay discrimination.
The majority's reading of the relevant provisions of Title VII of the 1964 Civil Rights Act, which bans employment discrimination based on (among other things) sex, rested on three points that Ginsburg did not dispute.
* Congress provided an unusually short statute of limitations for Title VII lawsuits such as plaintiff Lilly Ledbetter's—180 days "after the alleged employment practice occurred"—in a political compromise designed to promote conciliation over litigation.
* Title VII required Ledbetter to prove that the "employment practice" involved intentional discrimination in pay based on sex.
* Her employer, Goodyear Tire & Rubber, did not intentionally discriminate against her during the 180 days before she filed her complaint.
Case closed, one might think: This lawsuit was time-barred by Congress.
But lawyers for Ledbetter, who was paid significantly less than any of her male colleagues, and Justice Ginsburg had a theory to get around the 1964 act's seemingly plain language:
Because supervisors intentionally discriminated against Ledbetter by putting her on a lower-paid track than her male colleagues years before she filed her claim, the argument goes, then—even if nobody ever intentionally discriminated against her again—each new paycheck amounted to a new act of discrimination, resetting the 180-day clock.
That's a stretch. True, most federal appeals courts have reached similar conclusions, but never, as Alito stressed, has the Supreme Court allowed such a Title VII suit to proceed without evidence that at least some intentional discrimination occurred within the 180-day period.
Four of the Court's prior decisions—in 1977, 1980, 1989, and 2002—held that Title VII's statute of limitations cut off any claims based on discriminatory acts that occurred more than 180 days before the claim was filed, even if those acts continued to adversely affect the plaintiff's pay or status into the 180-day period.
Ginsburg stressed another decision, Bazemore v. Friday, from 1986. But while somewhat ambiguous, Bazemore involved allegations of intentional, race-based pay discrimination during, as well as before, the 180-day period.
The Ledbetter case exemplifies the policy judgment underlying such congressionally mandated time limits. The main acts of discrimination alleged by Ledbetter dated to the early 1980s and mid-1990s, when she says a supervisor retaliated against her for shunning his sexual advances by giving her smaller raises than similarly situated men. Ledbetter knew no later than 1992 that she was earning less than most male colleagues. But she waited to sue until July 1998, when she was ready to retire. By the time of trial, the alleged harasser had died, leaving Goodyear in no position to dispute her claims.
The approach proposed by Ginsburg and the three other dissenters could effectively nullify Congress's 180-day statute of limitations in all, or at least most, pay-discrimination lawsuits—even, Alito suggested, if the plaintiff waits 20 years to sue after learning of a single allegedly discriminatory act. Ginsburg responded that judges could use legal doctrines including "laches" to throw out claims filed unreasonably late. Or, as Alito explained, they might not.
The inevitable cost of any statute of limitations is that some valid claims will be time-barred. Congress, not the courts, is supposed to strike the cost-benefit balance. And Congress is free to change or fine-tune the provision to make it more plaintiff-friendly, as Ginsburg and others have urged. But is it the Court's job to fine-tune it by strained interpretation?
Meanwhile, the suggestions by Ginsburg and the media that the decision leaves women such as Ledbetter with no adequate remedy for pay discrimination—because they may not even know what their male peers are paid until more than 180 days after the allegedly discriminatory pay-setting decision—are vastly exaggerated.
It's true that some victims of pay discrimination will be initially ignorant of their peers' pay and thus out of luck as far as Title VII is concerned. But Ledbetter, who waited six or more years to sue after learning of the pay disparities, is not one of them.
Besides, Title VII is not the only remedy for sex-based pay discrimination. The Equal Pay Act of 1963 requires employers to pay women as much men doing "equal work" in the same establishment, with exceptions including merit pay. This law does not require proof of intentional discrimination. And it has a much longer, three-year statute of limitations.
Ledbetter sued under the Equal Pay Act as well as under Title VII. But the trial judge threw out the former claim. The exact reasons are unclear, but it appears that few men at Goodyear had jobs similar enough to Ledbetter's to meet the definition of "equal work." Ledbetter did not appeal, perhaps because the big bucks are in punitive damages, which are unavailable under the Equal Pay Act.
The judge allowed the Title VII claim to go to trial. The jury found sex-based pay discrimination and awarded Ledbetter $223,776 in back pay, $4,662 for mental anguish—and $3,285,979 in punitive damages. The judge reduced this to $60,000 in back pay and the congressional maximum $300,000 in (mostly punitive) damages.
This is the award that the justices overturned (as had a federal appeals court) on the ground that the Title VII claim should never have gone to the jury because there was no proof of intentional discrimination during the 180-day period set by Congress.
By the way, it's debatable, if legally irrelevant, whether the jury was right to find that Ledbetter was a victim of sex discrimination. While she and two other women testified that male supervisors at the plant were openly biased against women, other witnesses disagreed. And the evidence as to Goodyear's intent was old and stale.
It was clearly established, on the other hand, that the pay disparities between Ledbetter and similarly situated men were largely attributable to the cumulative effect of repeated layoffs, which made her ineligible for raises in 1986, 1987, 1988, and 1990, and which she has not alleged to be discriminatory.
Beyond that, before the case went to the jury, a federal magistrate judge found that Ledbetter's relatively low pay reflected "weak" job performance, not sex discrimination. He noted that most of her performance evaluations were "at or near the bottom": 15th out of 16 area managers, and 23rd out of 24 salaried employees in tire assembly in both 1996 and 1997, for example. Ledbetter said the evaluations were tainted by discrimination.
Ginsburg, whose dissents from this and other 5-4 conservative rulings have brought much media adulation, has said she feels "lonely" on the bench since Justice Sandra Day O'Connor, her only female colleague, retired. And some suggest that O'Connor would have voted with Ginsburg in this case.
Perhaps. But a 2002 decision relaxing Title VII's filing deadline in a case involving a years-long pattern of racial harassment suggests otherwise. The majority opinion, then described by The New York Times as "an important victory for workers," was written by Justice Clarence Thomas, whom Adam Cohen of The Times maligned after the Ledbetter decision for "reflexively" opposing "discrimination claims of minorities and women." The author of the dissent, which called for strict enforcement of the statute of limitations against "all types of Title VII" plaintiffs, was Sandra Day O'Connor.