Obama Administration distorts Supreme Court decision, breaks campaign promises

April 10, 8:55 AMDC SCOTUS ExaminerHans Bader

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The Obama Administration repeatedly distorted the facts of a Supreme Court decision, Ledbetter v. Goodyear, that it used as a campaign issue in 2008. It also broke campaign promises in signing legislation related to that court ruling. That’s just one of many broken promises by Obama, such as his false claims that he would implement a “net spending cut” and not raise taxes on anyone making less than $250,000.

In signing his first bill into law, Obama didn’t let facts get in the way of a good story, or milking a political wedge issue. He falsely claimed that Lilly Ledbetter, whose pay discrimination claim was dismissed by the Supreme Court as untimely, worked at Goodyear “for nearly two decades before discovering that for years, she was paid less than her male colleagues for doing the very same work.” Actually, Ledbetter knew by 1992, if not earlier, that she was being paid less than the male employees she claimed should have been paid the same as her. Small wonder that the Supreme Court’s 2007 ruling in Ledbetter v. Goodyear dismissed her claim as untimely. (She brought the claim after the supervisor she accused of discrimination had died, and shortly before she retired).

Ledbetter now claims to the contrary, but she admitted under oath in her deposition that she knew for years of the wage disparity she now claims was discriminatory. If she really hadn’t been able to discover the discrimination in time to meet the deadline, her lawyers would have cited that fact to take advantage of exceptions to the deadline) for hoodwinked employees (known as equitable tolling or estoppel). But as the Supreme Court noted in footnote 10 of its decision, even broadening those existing exceptions to the deadline further for her benefit would have done her no good, since her discovery of the wage disparity had occurred long ago.

Many lawyers, like leading employment lawyer David Copus and prominent Washington lawyer Paul Mirengoff, have quoted from Ledbetter’s deposition testimony admitting she knew of the wage disparity. See, e.g., David Copus, “Pay Discrimination Claims After Ledbetter,” Defense Counsel Journal, Volume 75, page 300 (Oct. 1, 2008).

Mirengoff has chided Obama and the White House for telling tall tales about the Ledbetter case, both recently and in the past.  So have other lawyers and commentators. But the President made the same false claims yet again in his remarks in the Oval Office signing into law the Lilly Ledbetter Fair Pay Act. That law will functionally eliminate the deadline for bringing most pay discrimination claims, by restarting the deadline for suing each time an employee receives a paycheck or pension benefit allegedly influenced by past discrimination.

During the 2008 election campaign, both Obama and state democratic parties made similar false claims about the Ledbetter case, in order to use it as a political wedge issue.

The White House has also made false statements about how much time employees have to sue over pay discrimination. In the Ledbetter case, the Supreme Court enforced the 180-day deadline for bringing pay discrimination claims contained in the federal discrimination law with the shortest deadline, Title VII. (Other laws, like the Equal Pay Act, have much longer deadlines, like 3 years).

The White House claims that “The Court ruled that employees subject to pay discrimination like Lilly Ledbetter must file a claim within 180 days of the employer’s original decision to pay them less . . . even if the employee did not discover the discriminatory reduction in pay until much later (check out Justice Alito’s arguments in the Court’s opinion).”

That is misleading, and perhaps knowingly so, since the White House links to the very court decision it distorts. First, the Court never said there was a rigid deadline that bars claims by employees who “did not discover” discrimination “until much later.” Ledbetter never argued that the deadline should be suspended based on her employer concealing discrimination against her, because she in fact knew for years about the pay disparity she later sued over. If she truly had been in the dark about the alleged discrimination, she could have sought to take advantage of exceptions to the deadline that suspend it, like waiver, estoppel, and equitable tolling, under the Supreme Court’s decision in Zipes v. Trans World Airlines, 451 U.S. 385, 398 (1982). But she never made that argument, because, as she testified in her deposition, she had been told many years earlier that she was being paid less than the men she later claimed ought to have been paid the same as her.

Nor did she argue that the outcome of her case would have been changed if the Supreme Court recognized an even broader extension to the deadline for employees who are unaware of the discrimination against them, the so-called discovery rule. As the Supreme Court specifically noted in footnote 10 of its opinion, “we 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.” In short, since Ledbetter had long known of the facts underlying her discrimination claim, relaxing the deadline for employees who “did not discover” the discrimination until much later would have done her no good.

Thus, it is wrong for the White House to suggest that the Supreme Court sought to bar claims irrespective of whether “the employee did not discover the discriminatory reduction in pay until much later."

Second, the Supreme Court expressly noted that the plaintiff could have pressed her claim instead under the Equal Pay Act, which has a longer deadline for suing (usually 3 years) and perhaps more generous accrual rules. But her  lawyer foolishly failed to preserve that claim, which was a mistake, as he admitted to the Supreme Court. The Supreme Court responded by noting that “Petitioner, having abandoned her claim under the Equal Pay Act, asks us to deviate from our prior decisions in order to permit her to assert her claim under Title VII.”

The Obama campaign and state democratic parties spent much of the 2008 election season attacking the Supreme Court for supposedly creating a rigid 180-day deadline for pay discrimination claims. Those claims were false.

The fact that the Supreme Court rejected Ledbetter’s claim as untimely should not have been a shock to anyone, given that she waited until shortly before she retired to sue, after the supervisor she accused of discrimination had died.

Obama violated campaign promises by hastily signing the bill to override the Ledbetter decision without giving the public the opportunity to comment on the bill. In the 2008 campaign, Obama repeatedly promised not to sign bills without first giving the public five days to comment. “Too often bills are rushed through Congress and to the president before the public has the opportunity to review them,” Obama’s campaign Web site stated. “As president, Obama will not sign any nonemergency bill without giving the American public an opportunity to review and comment on the White House Web site for five days.”

But Obama signed the Ledbetter Fair Pay Act, which overrode the Ledbetter decision, less than two days after it was passed by the House, with no opportunity for comment.

This is just one of Obama’s many, many broken promises. In 2008, Obama promised a “net spending cut” (although he never did come up with cuts to offset his proposed spending increases). Obama broke this campaign promise in a big way with his proposed budget, which could bankrupt the United States, according to senior Senators.

Obama’s proposed budget would have increased spending levels so much that budget deficits would rise by $4.8 trillion to $9.3 trillion while taxes would increase by $1.9 trillion, according to the Congressional Budget Office.

Obama’s promise not to raise taxes in “any form” on anyone making less than $250,000 per year has been broken by the SCHIP excise tax increase he signed into law, and his proposed $2 trillion cap-and-trade carbon tax.

Obama broke seven campaign promises dealing with transparency and clean government in signing the $800 billion stimulus package, much of whose contents were secret until shortly before Congress voted on it, and whose 1400 pages went unread by most Congressmen who voted on it.

The Congressional Budget Office says that the stimulus package, despite its enormous cost, will actually shrink the economy over the long run, by exploding the national debt and crowding out private investment. That contradicts Obama’s apocalyptic claims that the stimulus package was necessary to avert “irreversible decline” and economic “disaster.”