The Magazine

The Fair Pay Follies

Lilly Ledbetter is not quite the feminist martyr she seems.

Sep 29, 2008, Vol. 14, No. 03 • By ERIN SHELEY
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Three weeks ago at the Democratic National Convention, Lilly Ledbetter delivered a soliloquy on "fair pay" for women--a cause the Democrats are certain to highlight in the coming weeks of this increasingly woman-centric campaign. She's the "grandmother from Alabama" and former supervisor at a Goodyear Tire and Rubber plant who sued the company in 1998 under Title VII of the Civil Rights Act of 1964, claiming gender-based wage discrimination. She was also a timely reminder of Barack Obama's views on judicial activism.

In her convention speech, Ledbetter chided the Supreme Court for "sid[ing] with big business" by ruling that she "should have filed her complaint within six months of Goodyear's first decision to pay [her] less." The Lilly Ledbetter Fair Pay Act, a proposed amendment to Title VII that would have overturned the Supreme Court decision, failed in the Senate in April, but only after voting was delayed until 6 P.M. to give Barack Obama and Hillary Clinton time to return from the campaign trail and give impassioned speeches in support of the measure and pose for photo-ops with Ledbetter.

This casting of Lilly Ledbetter as feminist martyr, though, has serious problems. First, the High Court's decision in her case had nothing to do with gender discrimination as a substantive matter. It turned solely on the requirement that an employee must file a charge with the Equal Employment Opportunity Commission (EEOC) within 180 days of the discrimination occurring, which Ledbetter did not. Second, Ledbetter herself would not even have needed her namesake act to avoid this requirement if her lawyer had pressed Ledbetter's claim under the existing Equal Pay Act of 1963 instead of under Title VII.

To prove a claim of gender-motivated discrimination under Title VII, an employee must show that an employment practice (such as Goodyear's performance evaluations) was motivated by discriminatory intent. Ledbetter claimed her supervisor gave her poor performance evaluations during her tenure at the Goodyear plant from 1979 to 1998 because of her sex. As pay raises were tied to performance evaluations, she claimed that this discrimination resulted in her earning substantially less than her male colleagues. Ledbetter filed her suit in 1998 and relied on the fact that she had received paychecks within the 180-day EEOC window--claiming they were lower as a result of past discrimination. This is the argument that the Supreme Court rejected.

Nearly all legal claims have statutes of limitations, under the theory that, at some point, a party's interest in vindicating a wrong becomes outweighed by the broader social interest in stability, which would be greatly compromised if anyone could be sued at any time for any action committed at any point. This is especially true in the case of "big business," where the predictability of impending litigation factors into a company's value to investors purchasing its stock.

Statutes of limitations also serve a practical evidentiary function: The longer ago an event happened, the harder it is to prove in a court of law. In a suit like Ledbetter's, requiring proof of a party's intent, this concern is heightened. As the Supreme Court explained in its decision: "In most disparate-treatment cases, much if not all of the evidence is circumstantial. Thus, the critical issue in a case involving a long-past performance evaluation will often be whether the evaluation was so far off the mark that a sufficient inference of discriminatory intent can be drawn." Whether or not Ledbetter's boss was a misogynist back in 1981 is a difficult question to resolve in court in 1998.

Proponents of the Lilly Ledbetter Fair Pay Act argued that, even if the Supreme Court decided the case properly under Title VII as written, the law itself should be changed to correct the power imbalance between corporate employers and their employees and inherent limitations on the latter's ability to acquire information about employment decisions. But the law already provided a remedy for Ledbetter.

The Equal Pay Act of 1963 (EPA) prohibits the payment of unequal wages to employees of different sexes who perform equal work. Unlike Title VII, the act has no intent requirement, meaning that Ledbetter might have made out a case under the EPA based upon the pay disparity as it existed at the end of her career, even after the intentionally discriminatory evaluations were long past. Furthermore, the EPA has a longer statute of limitations: two years after a violation occurs, and three years where such violation was intentional. Ledbetter initially sued Goodyear under both the EPA and Title VII, suggesting that, at some point, her counsel was aware of this.

In a pretrial proceeding, a magistrate judge recommended dismissal of Ledbetter's claims on the grounds that Goodyear had demonstrated that the pay disparity resulted from Ledbetter's poor performance rather than her sex. Ledbetter objected to this finding, and a district court sustained this objection in an opinion that mentioned her "disparate pay claim" (the Title VII claim), but made no reference to her EPA claim. According to the record as discussed by the Supreme Court in its opinion, it appears that Ledbetter's counsel then abandoned the EPA claim altogether, pressing only the Title VII claim with its more difficult burden of proof.

Ledbetter, then, did not need the Lilly Ledbetter Fair Pay Act to wage a timely suit against Goodyear--even if one believes that Title VII's 180 days is too stingy a statute of limitations. The proposed Fair Pay Act, moreover, would have essentially abolished any statute of limitations for Title VII claims. An employee's receipt of any paycheck that would have been higher were it not for some prior act of discrimination--no matter how many years in the past it occurred--would constitute a new violation, thereby exposing employers to a vast amount of new litigation.

That Barack Obama supports the idea of limitless liability for employers, based solely on the identity of the plaintiff, is not surprising given the comments he has made concerning judicial nominations. In a November debate, when asked what kind of justice he would nominate to the Supreme Court, he cited "people who have life experience and [who] understand what it means to be on the outside, what it means to have the system not work for them, that's the kind of person I want on the Supreme Court." In other words, Obama's ideal justice might deliberately avoid construing the law as written, when doing so would allow "the system" to triumph over a sufficiently sympathetic litigant.

The spotlight on Ledbetter at the Democratic National Convention was less disturbing as a political eulogy for a bad bill, than as a reminder that an Obama victory could mean a new era of judicial activism.

Erin Sheley is a writer and lawyer in Washington, D.C.