Obama Overloads a Tale of Equal Pay

By VICTORIA TOENSING
October 24, 2012
WSJ.com

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 Ledbetter v. Goodyear Tire & RubberCo. GT +0.83% (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 rule.

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.