Prominent Law Professor Slams PolitiFact on Ledbetter
posted at 7:13 am on October 22, 2012 by Matt Vespa
As women abandon the president, it’s only natural that a question concerning equal pay and Lilly Ledbetter be brought up during last week’s town hall style presidential debate. However, some folks still think that Lilly Ledbetter paved way for equal pay. This ‘landmark’ law, which has allowed a whopping 40 lawsuits to be filed under its provisions, only extends the statute of limitations. However, Hans Bader of the Competitive Enterprise Institute emailed me concerning “Case Western Reserve University law professor Jonathan Adler, who teaches environmental law, and practices in courts including the Supreme Court, having problems with Politifact’s fact-check regarding Ledbetter.”
Bader noted that “Professor Adler said that PolitiFact got the facts about that decision and about Lilly Ledbetter wrong – which means President Obama also got it wrong, since PolitiFact parroted President Obama. Professor Adler notes that he apprised PolitiFact of the false claim, and they brushed him off, saying it was “under review,” and then failed to fix it.” Adler’s post on the subject can be founder here at The Volokh Conspiracy.
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.
The problem is the last part of this sentence is false. In Ledbetter the Supreme Court did not hold that employees who learned of alleged discrimination more than 180 days after the alleged offenses were precluded from suing their employers. That question was not before the Court, and the majority opinion expressly noted (in footnote 10) that it was not answering this question. Ledbetter’s claim was not premised on a recent discovery of past discrimination. In fact, during the course of the litigation Ledbetter acknowledged that she first learned of the alleged discrimination more than 180 days before she filed suit. Indeed, as Hans Bader notes, Ledbetter admitted in a deposition that she learned of the pay disparities in 1992, but did not file suit until 1998. Whether or not this should have precluded her suit, and whether or not the subsequent legislation was wise, it is simply false to say that the Supreme Court’s decision would have precluded individuals from pursuing claims about prior discrimination even if they “learned of such discrimination later.” This “fact” asserted by Politifact is nothing of the sort. [I e-mailed Politifact about this on Wednesday evening. On Thursday I received an e-mail saying they were “reviewing” the claim. Although it would take no more than ten minutes to read the relevant portions of the Supreme Court’s decision, Politifact has yet to revise the article, or even note that the claim is disputed.]
UPDATE: Politifact still hasn’t added a correction to their original post.