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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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.