Fact Checking Lilly Ledbetter’s False Speech At The Democratic National Convention

Former pay-discrimination plaintiff Lilly Ledbetter, in speaking at the Democratic National Convention on September 4, repeated the false claim that she learned about the pay disparity she sued over only at the end of her career, in order to suggest that the Supreme Court did her an injustice when it later dismissed her pay discrimination lawsuit as untimely in Ledbetter v. Goodyear Tire & Rubber Co. (2007). In reality, she was aware of the pay disparity for over five years before filing a legal complaint over it. It’s not true, as she claimed to the convention, that she didn’t learn of it until “two decades” after she began working at the company. (She had worked for the company since 1979. She learned of the pay disparity by 1992, as excerpts from her deposition, filed in the Supreme Court as pages 228-241 of the Joint Appendix, make clear. But she only filed a legal complaint over it in 1998.)

Ledbetter lost her pay discrimination case because she filed her complaint with the Equal Employment Opportunity Commission (EEOC) too late, long after the legal deadline. The Supreme Court said that, in most cases, employees should file an EEOC complaint within 180 days of their first discriminatory paycheck, if they want to sue under the federal anti-discrimination law with the shortest deadline, Title VII of the Civil Rights Act.

But the Supreme Court also specifically left open the possibility that employees could sue later simply because they didn’t know of the discrimination at the time — a situation it said did not apply to Ledbetter’s case (she testified in her deposition that she knew of the pay disparity in 1992, but only filed her complaint with the EEOC in 1998, around the time she retired). The Court pointedly noted that the plaintiff could have pressed her claim instead under the Equal Pay Act, which has a longer deadline for suing. (Moreover, as lawyer Paul Mirengoff observed, the Supreme Court has long allowed hoodwinked employees to rely on equitable tolling, waiver, and estoppel to sue beyond the deadline, when employer deception keeps them from suing within 180 days, as it made clear in its Zipes decision.)

As Stuart Taylor of the National Journal noted:

Ledbetter admitted in her sworn deposition that “different people that I worked for along the way had always told me that my pay was extremely low” compared to her peers. She testified specifically that a superior had told her in 1992 that her pay was lower than that of other area managers, and that she had learned the amount of the difference by 1994 or 1995. She added that she had told her supervisor in 1995 that “I needed to earn an increase in pay” because “I wanted to get in line with where my peers were, because… at that time I knew definitely that they were all making a thousand [dollars] at least more per month than I was.”

The Supreme Court did not say that the deadline should apply rigidly, without regard to whether a worker could have discovered the discrimination, and instead expressly left open the possibility that plaintiffs can wait to sue until after learning of discrimination, under the so-called “discovery rule.” It noted in footnote 10 of its opinion:

[W]e 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 didn’t even claim that a lack of knowledge had prevented her from suing in time, relaxing the deadline for her would have done her no good. (Moreover, if she had lacked knowledge as a result of being hoodwinked by her employer, she could have had the deadline extended under the Supreme Court’s doctrine of equitable tolling, which applies somewhat more narrowly than the discovery rule.)

After she lost her case, Ledbetter falsely claimed to Congress that she had not learned of the discrimination until the end of her career — a claim parroted by gullible politicians and the press. (Tellingly, Ledbetter’s claim is found nowhere in the dissenting opinion in Ledbetter v. Goodyear, even though if it had been true, the dissenting justices surely would have cited it, since it would have given them a much stronger reason to rule in her favor.)

But in Ledbetter’s deposition, she admitted she knew by 1992 — years earlier — that she was paid less than her male peers, noted David Copus in page 8 of the online version of his October 2008 law journal article in Defense Counsel Journal entitled “Pay Discrimination Claims After Ledbetter.” Similarly, Washington lawyer Paul Mirengoff pointed out that:

Ledbetter testified that she knew by 1992 that her pay was out of line with her peers. In 1995, she spoke to her supervisor about the problem, telling him that “I knew definitely that they were all making a thousand at least more per month than I was and that I would like to get in line.” Yet Ledbetter waited until 1998 to file her EEOC complaint.

Moreover, although the Supreme Court dismissed Ledbetter’s claim under Title VII, the discrimination law with the shortest deadline, it pointed out that the plaintiff could easily have pressed her claim instead under the Equal Pay Act, which has a longer deadline for suing. As it noted, “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.” She might have won her case had she simply appealed based on the Equal Pay Act, which has a longer deadline (3 years in most cases) and perhaps more generous rules for when the clock starts ticking on the statutory deadline for suing. (Under some other discrimination statutes, the deadline for suing restarts with each paycheck, allowing employees to sue even though they needlessly delayed in bringing their discrimination claim after learning about it.  Justice Ginsburg’s dissent in the Ledbetter case argued that such an indulgent rule should be applied to Title VII intentional discrimination cases, like the one Ledbetter brought, as well. Under another provision of Title VII — the disparate-impact provision — the deadline restarts with each paycheck, as the Supreme Court indicated in Lewis v. Chicago (2010), which held that under the disparate-impact provision — unlike the intentional-discrimination provision at issue in the Ledbetter case — the deadline does not run from the date a decision or policy is adopted, but rather restarts all over again each time the policy is applied, giving the plaintiff much more time to sue.)