Sunday, October 21, 2012

The limits of the Lilly Ledbetter law...

That Americans in an election year are treated more to symbolism than substance from our corporate owned media is exhibited in the discussion of the Lilly Ledbetter Fair Pay Act, which reversed the Ledbetter v. Goodyear Tire decision of 2007.

Yes, Obama correctly signed this legislation, but it is not really about equal pay for equal work--that was and is already law. The legislation is merely about the statute of limitations in a most narrow sense: If your employer discriminated against you on the basis of race, sex, religion, etc. more than 180 days ago, but the effect of that discrimination shows up in a lower paycheck within the last 180 days, you may sue under the 1964 Civil Rights Act for the lost wages in that 180 day period. The law also applies to the Equal Pay Act, which already carries a statute of limitation up to 3 years or a Civil Rights violation under US Code 42 section 1981, which also already has a 4 year statute of limitation.

There was something always strange about the Ledbetter plaintiff lawyers in that they abandoned her right to sue Goodyear under the Equal Pay Act (see footnote 9 of the Supreme Court Ledbetter opinion), and they refused to argue that the statute of limitations should be suspended or tolled during the time her employer refused or failed to tell Ledbetter of the discrimination against her--such tolling being well established in most areas of the law (see footnote 10 of opinion, which did show Alito trying to create some doubt about tolling statutes of limitations in employment discrimination cases; which was a ridiculous doubt for him to cast, if anyone knows any lawyers who practice in employment law). See also: This article from the San Francisco Examiner explaining this in some detail and noting Ms. Ledbetter herself is not being truthful in how she describes her case.

When Obama signed the legislation, I said to those who asked about it, "I don't foresee major changes in the number of people suing or the expansion of payments in litigation. It's a narrow issue and does not come up much in the way it did in the Ledbetter lawsuit."

And that opinion appears to have been borne out over the three years since the law passed.

I could not find anything about the effects of the law over the past three years since the Act was signed into law. Here, however, is a fairly prominent firm from the southeast US stating on its website that the Ledbetter Act was not having much effect a year after the law was enacted:

"Although the case law under the Ledbetter Act is limited as of this time, federal courts have refused to use the Act's concepts to analogize to forms of discrimination beyond wage disparities. Given these limitations, the volume of litigation and the resulting impact of the Ledbetter Act on employers has been fairly limited in the first year since its enactment."

There has been one change for employers, which has been employers now hold for longer periods an ex-employee personnel file just in case the ex-employee claims a long ago discrimination that ended up causing a lower paycheck in the past four years (meaning employee personnel records are now shredded after four or five years, instead of three or four years). See this article.

Other than that, I've not seen the Act raised in the relatively few employment cases I have been defending, and there is nothing in the Internet showing the Act has had much impact in the amount of litigation nationwide or even in any particular State.

Republican politicians such as Florida Senator Marco Rubio, who today blasted the law as somehow a giveaway to trial lawyers, are really only telling us they are lieutenants in the war against women.

Contrary to Rubio, the Ledbetter Act is a good law. I'm glad Obama signed it. It again harmonized rights for relief from discriminatory acts with other anti-discriminatory laws.

But the pundits and politicians who talk about it as momentous are just engaged in obscuring the larger economic issues neither want to talk about: Things like the Trans Pacific Trade deal. The labor law reform, known as the Employee Free Choice Act. Tariff law reform and expansion.

People need jobs that pay well far more than a limited remedy from a previously narrowly interpreted statutory law. It is pathetic for Democratic Party pundits and politicians to trumpet it as momentous, and disgusting for Republican Party pundits and politicians to attack it.

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