“When I came into office, we passed something called the Lilly Ledbetter Act, named after a good friend of mine, Lilly Ledbetter, who had worked for years and found out long into her work that she had been getting paid all these years less than men, substantially. She brought suit. They said, well, it’s too late to file suit because you should have filed suit right when it started happening. She said, I just found out. They said, it doesn’t matter. So we changed that law to allow somebody like Lilly, when they find out, to finally be able to go ahead and file suit.”
— President Obama, remarks at Working Mothers Town Hall, Charlotte, N.C., April 15, 2015
Hans Bader, an attorney at the right-leaning Competitive Enterprise Institute, wrote to The Fact Checker questioning this statement by the president. He said it was misleading because “Ledbetter admitted in her deposition that she knew of the pay disparity years earlier, and the Supreme Court specifically said in footnote 10 of its decision that the result might have been different under the ‘discovery rule’ if she hadn’t learned of it in time to sue.”
Bader further expanded on his case in a blog post. He had written often about this issue, including in a letter to The Washington Post.
Given that the president’s description of the case is similar to most media accounts – and in speeches and testimony by Ledbetter – this seems like an interesting issue to explore. What do the facts show?
A key part of the Ledbetter story is that in 1998 she found an anonymous note in her mailbox while at work at the Goodyear Tire and Rubber Co. plant in Gadsden, Ala. It was “a torn piece of copy paper with black handwriting on it,” as she puts it in her 2012 book, “Grace and Grit.” The note, she said, listed her salary, along with three managers, and her salary “was exactly correct, down to the dollar.” The document indicated that she was making much less money than her male counterparts.
Ledbetter put it this way in her speech to the Democratic National Convention in 2008: “Toward the end of my 19 years at Goodyear, I began to suspect that I wasn’t getting paid as much as men doing the same job. An anonymous note in my mailbox confirmed that I was right.”
At the time, Ledbetter was close to retirement. She had started at Goodyear as a supervisor in February 1979 and had become an area manager in 1985. Generally her performance ratings were low, though she did receive two performance-based awards.
In June of 1998, Ledbetter was involuntarily transferred to a new position — a technology engineer. She then was suspended for three days after making an error that required the company to scrap 200 tires. (She said she had not been properly trained and her suspension was more severe than similar mistakes by men.) She filed a complaint with the Equal Employment Opportunity Commission that she had been a victim of sex discrimination, eventually citing the job transfer, the suspension and the fact her pay was less than male area managers.
Later that year, in October, she participated in a voluntary layoff program and then sued the company. She sued under both the Equal Pay Act and Title VII of the Civil Rights Act, alleging age discrimination, sex discrimination and retaliation. But eventually only the Title VII actions on disparate pay and involuntary transfer came to trial.
In an interview, Ledbetter said that the note “gave me the assurance that what I suspected, and was afraid of, was correct.” She said that because of the note, she was motivated to file an EEOC claim.
In her initial questionnaire, dated March 25, 1998, Ledbetter only mentioned the suspension after being forced into the new job. In a formal EEOC charge dated July 20, 1998, among other things, she wrote that “at the time that I was transferred, I learned that the male area managers were earning a higher salary than me.” (The EEOC filings are part of the official Supreme Court record.)
Ledbetter says she did not keep the note, which she described as a torn piece of paper. “To me, the note was never important,” she said.
The note certainly never was raised in the trial on her claims.
Jay St. Clair, the attorney who defended Goodyear at the trial, said that Ledbetter’s story of the anonymous note is “one of my favorite subjects.” He said the first time he ever heard of the anonymous note was from news reporting about the Supreme Court case in 2007 — after she won the court case in 2003 on the pay-discrimination claims and after an U.S. Appeals Court in 2005 overturned the verdict.
“She never testified at the trial about the note,” he said. “If they had had that note, that’s how they would have tried the case.”
The Fact Checker asked Jon C. Goldfarb, Ledbetter’s attorney, when he first learned of the anonymous note. “I don’t remember,” he answered. “Sorry.” He added: “I know she did not know the extent of the pay disparity until receiving discovery from Goodyear in her case, which was after her employment ended.”
As far as we can tell, the first press mention of the note was in a 2007 article in The Washington Post.
St. Clair deposed Ledbetter in 2001, before the trial, and portions also have become part of the Supreme Court record.
In the deposition, which was taken under oath, Ledbetter says that a manager in 1992 told her that her pay was less than other people at her level. She added, “Different people that I worked for along the way had always told me that my pay was extremely low.”
St. Clair: “So you knew in 1992 that you were being paid less than your peers?”Ledbetter: “Yes, sir.”St. Clair: “And you knew that throughout 1993, 1994 and 1995?”Ledbetter: “I didn’t know how much at that time. … I didn’t learn that until – how much difference until probably about 1994 and ’95.”St. Clair: “And when you came to know in 1994 or 1995 exactly how much you were earning less than your peers, how did you come to know that?”Ledbetter: “Gosh, I don’t remember. I don’t really know. I don’t really remember that.”
At another point in the deposition, Ledbetter describes a conversation with a manager in 1995:
“I wanted to get in line with where my peers were, because I told him at that time that I knew definitely that they were all making a thousand [dollars] at least more per month than I was and that I would like to get in line.”
Ledbetter today says that this deposition has caused her a lot of grief over the years. “I wish I had never volunteered the statement” about the conversations with managers, she said.
“Common sense told me that I was paid less,” she said. She was nearing retirement and wanted to get her pay up, because she suspected it was lower, but she did not know the extent of the disparity. “I was trying to bluff them [the bosses]” by tossing off figures, she said. “I was trying to find out.”
Ledbetter noted that she had filed an EEOC claim in 1982, concerning sexual advances by a supervisor, and so was not shy about taking that confrontational route. “If I had known then [about the specifics of the pay disparity], I would have been to the EEOC back in 1992,” she said. “I swear on a stack of bibles, I never knew in ’92, ’94 and ’95.”
The Supreme Court case hinged on the question of whether Ledbetter’s case could be brought in the first place. The Appeals Court had nullified Ledbetter’s victory (initially more than $3.5 million but later reduced to $360,000) on the grounds that she could not prove she had been discriminated against 180 days before she had filed her complaint, as the law requires.
Her side argued that every time an employee got a paycheck, it constituted ongoing discrimination because the lower pay built up over the years. The Supreme Court sided with Goodyear, in a 5-4 vote, that the suit must be filed within 180 days after unlawful employment practices took place.
The court’s opinion noted that this issue might not have arisen if Ledbetter had not dropped her claim under the Equal Pay Act, which has a window of as long as three years, not just 180 days. “Ledbetter originally asserted an EPA claim, but that claim was dismissed by the District Court and is not before us,” said the opinion by Justice Samuel Alito. “If Ledbetter had pursued her EPA claim, she would not face the Title VII obstacles that she now confronts.”
However Justice Ruth Bader Ginsberg, in her stinging dissent, noted that “the EPA provides no relief when the pay discrimination charged is based on race, religion, national origin, age, or disability. Thus, in truncating the Title VII rule … the Court does not disarm female workers from achieving redress for unequal pay, but it does impede racial and other minorities from gaining similar relief.”
Ginsburg argued that “pay disparities often occur, as they did in Ledbetter’s case, in small increments; only over time is there strong cause to suspect that discrimination is at work.” She called on Congress to reverse the court’s decision — which it did. The Lilly Ledbetter Fair Pay Act, signed by Obama in 2009, mandated that all women, as well as racial and other minorities, can challenge pay discrimination as long as they are receiving checks that reflect unequal treatment.
The Pinocchio Test
Bader has been passionate on this issue for some time, complaining back in 2009 about distorted news coverage of the Ledbetter case. We always appreciate tips from readers, and in this case the research into the matter has been interesting and enlightening.
But here, we are going to forgo a Pinocchio ruling. Obama’s language was imprecise, but in general it reflects the basic outlines of the case. At this point, few would dispute that Ledbetter was a victim of sex discrimination; the issue before the Supreme Court was whether her complaint was timely. Ultimately, because the court decided that she did not file suit within the correct time frame, she never earned the back pay that she believed she was owed. Still, as the court noted, the outcome might have been different if she and her lawyers had pursued a claim under the Equal Pay Act.
We also find it hard to evaluate Ledbetter’s statements. Given her history with an earlier EEOC complaint, it makes sense that she might have filed a case as soon as she had evidence of a disparity. Alternatively, she could have had strategic reasons for delaying a possibly weak pay discrimination claim.
The Fact Checker, however, is surprised to learn that Ledbetter does not have the anonymous note that she says she found in her office mailbox — and that it did not even come up at her trial. Given the media attention to this factoid, one would have imagined it had been saved and perhaps even was hanging on a wall in her home.
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