Obama Overloads a Tale of
October 24, 2012
President Obama makes much of his concern for women's
rights, particularly regarding equal pay, but he seems not to be aware that
for nearly half a century we have enjoyed the protection of two laws
requiring equal pay. The 1963 Equal Pay Act and Title VII of the 1964 Civil
Rights Act combined to settle the matter in law.
Mr. Obama brags that the 2009 Lilly Ledbetter Fair Pay
Act bestowed equal-pay rights for women. The act, he has said, "is a big
step toward making sure every worker," male and female, "receives equal pay
for equal work." No, it was a teensy step. It merely changed how the statute
of limitations is calculated.
The Equal Pay Act of 1963 prohibits wage disparity
between men and women who work in the same place and perform jobs that
require substantially the same "skill, effort, and responsibility." The
statute of limitations for filing suit is two or three years, depending on
whether the discriminatory act is intentional.
Title VII of the 1964 Civil Rights Act covers
discriminatory hiring, firing and promotions as well as pay. It requires
filing a complaint with the Equal Employment Opportunity Commission within
180 days after an intentional discriminatory act.
Lilly Ledbetter, championed by Mr. Obama's campaign as
the sort of victim who would be claimed by the illusory Republican "war on
women," could have successfully sued under both statutes—if she had the
relevant sufficient evidence and had followed the rules.
Ms. Ledbetter began working for Goodyear in 1979. Upon
her retirement in 1998 she sued under the Equal Pay Act and Title VII. The
magistrate judge determined that both claims should be dismissed because
Goodyear demonstrated that the pay disparity came about because of her
"consistently weak performance, not sex." In 2002, the Alabama federal
district court reinstated only the Title VII action, and the case went to
trial in 2003.
Her evidence of discrimination turned mainly on one male
supervisor's alleged misconduct. She claimed that the discriminatory acts
against her occurred in the early 1980s and the mid-1990s when she rejected
his sexual advances, received poor performance reports, and was denied
appropriate pay raises. By the time of her trial, the supervisor was dead.
Nevertheless, a jury found for Ms. Ledbetter, awarding
damages and back pay. Goodyear appealed. The 11th Circuit ruled against her
and held that a Title VII claim had to adhere to the law's 180-day filing
requirement. The case went to the Supreme Court.
To get around the filing deadline issue, Ms.
Ledbetter argued that even though the discrimination occurred years before
her filing, every "reduced" paycheck repeated the discrimination. Therefore,
she claimed, she had fulfilled the statutory requirement to file within 180
days. The Supreme Court disagreed in
Goodyear Tire & RubberCo.
(2007), affirming the 11th Circuit's decision.
In public appearances for Democrats when election years
roll around, Ms. Ledbetter has claimed she did not file suit in a timely
fashion because she did not know she was being discriminated against until
the end of her tenure at Goodyear. But she admitted such knowledge in a
sworn pretrial deposition (which is in the Supreme Court case record). For
example, she said she had known for many years that her "pay was extremely
low" compared with that of male colleagues and that a supervisor in 1992
told her she was being paid less.
Mr. Obama has repeated Ms. Ledbetter's untrue claim. He
said in a C-Span interview on May 23, 2009 that Ms. Ledbetter "didn't know
that she was getting paid less" than male workers, and upon discovering the
discrepancy "she immediately filed suit."
Although Democrats maligned the Supreme Court's decision,
Justice Samuel Alito's opinion cited precedents, all applying the strict
statutory time period. In one (United Airlines v.
Evans, 1977), Justice John Paul Stevens—no conservative—wrote for the
court: "A discriminatory act which is not made the basis for a timely charge
is the legal equivalent of a discriminatory act which occurred before the
statute was passed."
The Supreme Court observed that Ms. Ledbetter had
abandoned her Equal Pay Act claim. If "Ledbetter had pursued her EPA claim,"
the court wrote, "she would not face the Title VII obstacle that she now
confronts." The court said it was open to an argument that the Title VII
statute of limitations does not start to run until an employee discovers the
discrimination. But the justices noted that "Ledbetter does not argue" that
Statutes of limitation are not technicalities. In
Ledbetter, for example, the Supreme Court
pointed to the dead witness, stating it is unfair to fail to put an
adversary on notice within a specific time period because employers should
not have to defend claims far in the past. The court reflected that it does
not want to alter congressional deadlines.
In 2009, the Democratic-controlled Congress amended Title
VII, allowing a suit to be brought within 180 days of any "discriminatory
compensation decision"—in other words, any too-low paycheck. In its
legislative "findings," Congress proclaimed that the
Ledbetter Supreme Court decision "undermines . . . protections by
restricting the time period . . . contrary to the intent of Congress."
So the Lilly Ledbetter Fair Pay Act was premised on the
legislators' pretending that Congress was not responsible for the precise
words of its own law setting the 180-day deadline.
It is amazing that our law professor/president, who has
repeatedly misstated the Ledbetter law and facts, does not know this legal
history. Or maybe he does.
Victoria Toensing is a founding partner of the
Washington law firm diGenova & Toensing. She has extensive experience in all
three branches of government solving problems for individuals, corporations,
trade associations and other organizations. She is an internationally-known
expert on white collar crime, terrorism, national security and intelligence
matters. In 1997, Toensing was named special counsel by the U.S. House of
Representatives to probe the International Brotherhood of Teamsters.