Obama Makes False Claim About Supreme Court Decision; Fact-Checkers Parrot It

Reading a Supreme Court decision is so hard! If you are a fact-checker, it’s much easier just to let President Obama, a critic of a Supreme Court decision, caricature the decision and then parrot the baseless caricature as if it were fact.

The Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., said employees who want to bring a pay discrimination lawsuit under Title VII (the federal antidiscrimination law with the shortest deadline) generally have to file a complaint with the federal Equal Employment Opportunity Commission (EEOC) within 180 days. But it specifically left open the possibility they could sue later on — even if they failed to file a timely EEOC complaint — if they did not discover the discrimination until later. The case involved Lilly Ledbetter, who waited more than five years after learning of a pay disparity between her and her male co-workers to file an EEOC complaint.

The White House falsely claimed “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).” In yesterday’s debate, Obama falsely claimed the Supreme Court said Ledbetter could not sue even if she had no way of discovering the discriminatory pay disparity. He said “the Supreme Court said that she couldn’t bring suit because she should have found about it earlier, whereas she had no way of finding out about it.”

These claims are utterly false. The Supreme Court specifically left open the possibility employees who learn of the discrimination later can sue under the “discovery rule” exception to the 180-day deadline. In footnote 10 of its opinion, the Court wrote, “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.”

Thus, since Ledbetter didn’t even claim in her lawsuit she hadn’t discovered the pay discrimination in time to sue, relaxing the deadline for her would have done her no good. In addition, if she truly had lacked knowledge of the pay disparity as a result of being deceived by her employer, she could have had the deadline extended under the Supreme Court’s doctrines of equitable tolling and estoppel, which are longstanding exceptions to the deadline that are a bit narrower than the discovery rule. But she didn’t allege either of these exceptions applied in her case.

In reality, Ledbetter knew of the pay disparity she later claimed was discriminatory for over five years before filing a legal complaint over it, as she admitted in her deposition in her lawsuit. But later, Ledbetter falsely claimed to the contrary in a speech to the Democratic National Convention.

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 part of the Joint Appendix, make clear. In response to the question: “So you knew in 1992 that you were being paid less than your peers?” she answered simply, “Yes, sir.” (See Joint Appendix at pg. 233; page 123 of Ledbetter’s deposition.) But she did not file a legal complaint over it until July 1998, shortly before her retirement in November 1998. See Ledbetter v. Goodyear, 550 U.S. 618, 621 (2007).

Politifact parroted Obama’s false claim in an Oct. 16 commentary entitled “Obama: Mitt Romney refused to say whether he supports Lilly Ledbetter Act.” It wrote:

 In 2007, the Supreme Court had ruled in Ledbetter vs. Goodyear Tire & Rubber Co. that the 180-day statute of limitations started from the day an employer made the decision to discriminate — making it impossible for employees who learned of such discrimination later to get relief, such as back pay.

This is just wrong, and all PolitiFact had to do to debunk this claim was read the Supreme Court’s decision (which its commentary claims was one of the “sources” for its “fact check”), or various law review articles about it. Or just read my prior emails to them, which I sent to a legion of fact-checkers in September 2012, anticipating Obama would make this false claim, having made similar false claims in the past. This morning, I sent more emails — to each Politifact staffer listed as contributors to the Oct. 16 commentary. In response, I received an email from the principal author this morning, stating:

“Thanks for your email. I’ll look into it and talk about it with my editors. What I wrote was consistent with how we’ve described the case in the past.”

As of now, the error I identified has not been fixed. I suspect it won’t be, until it is too late to correct it in the print version of any newspaper that cites Politifact. So the error will live on in every news database as if it were fact.

Ledbetter did indeed lose her pay discrimination lawsuit because she filed her complaint with the Equal Employment Opportunity Commission (EEOC) much too late, long after the legal deadline. The Supreme Court said 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 again, the Supreme Court didn’t say the deadline should be applied rigidly. Instead, it specifically left open the possibility 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 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 pointed out in the National Journal:

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.”

After she lost her case, Ledbetter falsely claimed to Congress and the media 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, under oath, she admitted she knew by 1992 – years earlier — that she was paid less than her male peers, as former EEOC lawyer David Copus noted long ago in a law review article no one has ever rebutted. (See Copus, Pay Discrimination Claims After Ledbetter, 75 Defense Counsel Journal 300, 305 (2008)).

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 did dismiss Ledbetter’s lawsuit under Title VII, the discrimination law with the shortest deadline, it pointed out the plaintiff could have prosecuted her discrimination 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 (three years in most cases) and perhaps more generous rules for when the clock starts ticking on the statutory deadline for suing. Indeed, Supreme Court Justices suggested just that. See Ledbetter v. Goodyear, 550 U.S. at 640 (responding to Ledbetter’s observation that “lower courts routinely hear [EPA] claims challenging pay disparities that first arose outside the limitations period” by noting that “the EPA and Title VII are not the same”; “If Ledbetter had pursued her EPA claim, she would not face the Title VII obstacles that she now confronts”); Ledbetter, 550 U.S. at 658 n.8 (Ginsburg, J., dissenting) (“Under the EPA,” “a claim charging denial of equal pay accrues anew with each paycheck,” citing legal treatise).

(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 starts running all over again 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.).

Disclosure: I used to bring discrimination lawsuits for a living. I once worked on a pay discrimination lawsuit against a university.