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Exhibit A in Painting Court as Too Far Right

By Robert Barnes
Washington Post Staff Writer
Wednesday, September 5, 2007

Lilly Ledbetter's pay discrimination case before the Supreme Court raised no constitutional quandaries and never received much attention.

Until it was decided.

Since the court ruled 5 to 4 that her suit against Goodyear Tire and Rubber was filed too late and that she was not entitled to the hundreds of thousands of dollars awarded to her by a federal judge and jury, Democrats and legal groups on the left have done their best to make Ledbetter a cause celebre.

For activists looking for a way to convince the public that the Supreme Court is moving too far to the right, a 70-year-old grandmother who worked alongside the men at an Alabama tire plant -- but who was paid less than all of them -- seems to fit the bill.

Since the decision, Ledbetter has testified before Congress and had an op-ed article published in the Christian Science Monitor. She stars on YouTube courtesy of Norman Lear, the television producer and founder of the liberal People for the American Way, who sent a film crew to her red-brick rambler in Jacksonville and produced a series of videos.

Three Democratic presidential candidates have signed on to Senate legislation that would overturn the court's decision. The House already has acted, approving the Lilly Ledbetter Fair Pay Act on July 31. The American Bar Association passed a resolution supporting Ledbetter and the legislation at its convention last month.

"It has just been amazing; Hillary Clinton personally called me to invite me to Washington," Ledbetter said. She'd just returned to Alabama from Chicago, where she'd been featured at the AFL-CIO convention and met "most but not all" of the Democratic presidential contenders.

The business community is scrambling to fight what would be the first legislative initiative of the Democratically controlled Congress to overturn a decision by the emerging conservative majority on the court, headed by Chief Justice John G. Roberts Jr.

The U.S. Chamber of Commerce denounced the House's quick action -- the court announced its decision in the case May 28 -- as "a dangerous rush to judgment in a matter as important as wage discrimination."

Jason Straczewski, director of employment and labor policy for the National Association of Manufacturers, added: "Essentially, this legislation would open the door to lawsuits that employers cannot defend."

Ledbetter worked at the Goodyear plant in Gadsden for nearly 20 years before she was forced out, and she sued the company because she learned that she made less money than any of her fellow supervisors -- all male -- even those with far less experience. Goodyear argued that Ledbetter's salary was based on her performance, but a federal jury awarded her $3.8 million, which a judge reduced to $360,000 to stay within the limits allowed by the law.

But an appeals court said Ledbetter had filed her complaint too late; Title VII of the Civil Rights Act of 1964 requires workers to make their claim within 180 days of the discriminatory action. Ledbetter acknowledged that the discrimination had happened earlier in her career but said she was unaware of it at the time. She argued that each paycheck she received that was smaller because of the discrimination was a new violation and reopened the 180-day window.

The Equal Employment Opportunity Commission agreed with this theory, known as "paycheck accrual," and supported her in the lower courts. But the Bush administration argued against it in the Supreme Court, and the five conservative members agreed.

In the first major decision he authored, Justice Samuel A. Alito Jr. wrote that the plain words of the statute and the court's past cases required a rejection of Ledbetter's discrimination argument. "Current effects alone cannot breathe life into prior, uncharged discrimination," Alito wrote.

Justice Ruth Bader Ginsburg blasted the majority's "parsimonious" reading of the law in her dissent, part of which she read from the bench. She accused the court of ignoring the real world, where a worker would not know within 180 days whether the raise she received was smaller than that of fellow workers and thus would have no way to challenge any suspected discrimination.

Ledbetter cuts through the legalities in the videos: "It wasn't right for me to do the same job, day in and day out, and not get paid according to the way the men were paid. It was not fair. . . . Had it been even close, I might not have gone to court, but it wasn't. So I had no choice."

Ralph Neas, president emeritus of People for the American Way, contends that Ledbetter's case holds the potential of capturing the public's interest in a way that higher-profile cases involving abortion and race do not.

Ledbetter shows "how the court's decisions affect real-life situations," Neas said. "It's important to put a human face on it."

Michael Eastman, executive director of labor policy for the U.S. Chamber of Commerce, acknowledges that the issue is a tough one for his group -- "everyone is opposed to unequal pay for equal work."

But as the Senate takes up the legislation, he makes the case that it is unfair to allow discrimination complaints long after the alleged actions took place.

For instance, one of Ledbetter's complaints is that a supervisor propositioned her and that her refusal led to a poor evaluation. But the man died before Ledbetter brought her suit.

"She is a compelling witness and makes a good case," Eastman said. "But what would her supervisor have said?" And Eastman said the bill goes beyond reversing the court decision in several ways, including giving spouses the right to sue.

The House voted 225 to 199 to approve the bill, with six Democrats crossing party lines to oppose it and two Republicans supporting it. In the Senate, two Republicans have signed on as co-sponsors.

The White House has said it strongly opposes the bill and has threatened a veto.

Whatever, Ledbetter said. "It will be in the history books even if it's not passed."

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