From: Hans Bader Sent: Wednesday, October 17, 2012 11:15 AM To: 'firstname.lastname@example.org' Subject: Politifact made false claim contradicted by court ruling and court records in "Obama: Mitt Romney refused to say whether he supports Lilly Ledbetter Act"
Dear Mr. Adair:
Politifact made a false claim about the Supreme Court s ruling in Ledbetter v. Goodyear contradicted by footnote 10 of the Supreme Court s decision, which is buttressed by court records you can find on the web site of Ms. Ledbetter s own lawyers. See Politifact, Obama: Mitt Romney refused to say whether he supports Lilly Ledbetter Act, October 16.
In 2007, the Supreme Court had ruled in Ledbetter vs. Goodyear Tire & Rubber Co. that the 180-day statute of limitations started from the day an employer made the decision to discriminate making it impossible for employees who learned of such discrimination later to get relief, such as back pay. Wrong. The Supreme Court left open the possibility that employees who learn of the discrimination later can sue under a discovery rule, in footnote 10 of its ruling.
It didn t need to decide the issue, though, because Ms. Ledbetter never argued to the Supreme Court that she didn t learn of the discrimination in time to sue. In fact, her deposition, submitted by her own lawyers in the Joint Appendix filed with the Supreme Court, shows that she knew of the pay disparity she later sued over for 5 years before filing an EEOC complaint.
The Supreme Court did not say that the deadline should apply inflexibly, without regard to whether a worker could have discovered the discrimination, and instead it explicitly left open the possibility that plaintiffs can wait to sue until after learning of discrimination, under the so-called discovery rule. It noted in footnote 10 of its opinion:
" e 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."
It s not true, as she claimed to the Convention, that she didn't learn of it until "two decades" after she began working at the company. She had worked for the company since 1979. She learned of the pay disparity by 1992, as excerpts from her deposition, filed in the Supreme Court as part of the Joint Appendix, make clear.
In response to the question: "So you knew in 1992 that you were being paid less than your peers?" she answered simply "yes, sir." (See Joint Appendix at pg. 233; page 123 of Ledbetter's deposition). But she only filed a legal complaint over it in July 1998, shortly before her retirement in November 1998. See Ledbetter v. Goodyear, 550 U.S. 618, 621 (2007).
Excerpts from Ms. Ledbetter s deposition can be accessed by clicking on words Joint Appendix in the above paragraph. It contains a hyperlink to the Joint Appendix that contains excerpts of Ms. Ledbetter s deposition. The document is on the SCOTUSBlog web site co-operated by Howe & Russell, which co-represented Ledbetter in the Supreme Court, and helps operate the widely-read SCOTUSBlog legal web site.
Thanks for reading my email.
Senior Attorney, Competitive Enterprise Institute (I once brought discrimination claims for a living, including one pay discrimination lawsuit).