On Ledbetter and the media

Distorting the News, to Obama’s Advantage, by Hans Bader
Open Market/CEI, March 04, 2009 @ 3:29 pm

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 a journalism professor, and legal commentator Stuart Taylor, have noted, press coverage of the decision “stank“, and was simply “lousy.”

In Ledbetter v. Goodyear (2007), the Supreme Court held that a woman who had waited five years after learning of pay disparities to file an EEOC complaint, and decades 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.