Lies multiply in election years. Legal commentator John Rosenberg notes that he “received in the mail today a glossy, large flyer from the ‘Democratic Party of Virginia’ saying, with many incorrect examples, that ‘John McCain opposes equal pay for women.'”
In reality, neither McCain nor Obama has ever suggested that equal pay for women is a bad idea. Instead, they disagree on what the legal deadline should be for bringing pay discrimination claims. Obama just thinks the deadline for suing should be longer than McCain does.
Every employment lawyer knows that equal pay is already mandated by federal law, and that employees can sue over pay discrimination years after it happens. An employee can sue both under the Equal Pay Act, which has a three-year deadline, and under Title VII, which has a 180-day or 300-day deadline (depending on the state). Moreover, these deadlines can be extended when appropriate under a doctrine known as “equitable tolling.”
In Ledbetter v. Goodyear, the Supreme Court, in a divided 5-to-4 decision, applied the Title VII deadline rigorously, holding that the deadline runs from the date of the first paycheck affected by the discrimination — even if future paychecks are affected by the discrimination, too. (The plaintiff in Ledbetter could have sued instead under the Equal Pay Act, which had a longer deadline. Instead, the plaintiff inexplicably sued only under Title VII — and waited to sue until long, long after she suspected discrimination). Four dissenting justices argued the deadline should run only from the last paycheck or pension benefit affected by the discrimination — even though that could result in an employer being sued decades later, even after the supervisor who originally set the pay has retired or died.
Obama agrees with the four dissenters, who argued that the deadline should run from the last paycheck affected by the discrimination, and has supported legislation, called the “Lilly Ledbetter Fair Pay Act,” to override the Supreme Court’s decision.
By contrast, McCain’s view is closer to that of the Supreme Court’s majority, and he has opposed the bill to overturn the Supreme Court’s Ledbetter decision, viewing it as opening the floodgates to litigation and stale claims.