PolitiFact Fixes Two Of Its Three Errors Related To The Supreme Court’s Ledbetter Decision

PolitiFact just revised a webpage discussing the Supreme Court’s Ledbetter decision that once contained an error that we discussed here and brought to PolitiFact’s attention on October 17. The error was the false claim that the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co. had declared that employees are barred from suing over pay discrimination even if they did not learn of the discrimination in time to sue, “making it impossible for employees who learned of such discrimination later to get relief, such as back pay.” Today, PolitiFact added a correction that reads:

CORRECTION: A previous version of this item said the Supreme Court’s Ledbetter decision made it “impossible for employees who learned of such discrimination later to get relief, such as back pay.” In fact, the court declined to address the question of whether employees who learned of discrimination after the statute of limitations expired would be protected under Title VII of the Civil Rights Act of 1964.

The phrasing of the last sentence of the correction is a bit cryptic and confusing (by speaking of “whether employees who learned of discrimination” afterwards “would be protected under Title VII of the Civil Rights Act of 1964″ as opposed to being able to sue), but at least the misleading phrase that used to exist on PolitiFact’s webpage (“making it impossible” for such employees to sue) is now gone.

PolitiFact still has an error on another webpage, which will probably be fixed, in which it states that Ledbetter “sued the company after discovering several months before her 1998 retirement that, for years, she was paid less than her male counterparts.” In reality, Ledbetter learned of the pay disparity she claimed was discriminatory 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). (Journalist Stuart Taylor; lawyers Victoria Toensing and Paul Mirengoff; and the Washington Examiner, have also noted that Ledbetter knew of the alleged discrimination for years before suing over it.)

PolitiFact has fixed another passage on that very web page that had erroneously claimed that the Lilly Ledbetter Fair Pay Act of 2009 created a discovery rule rather than a paycheck-accrual rule for bringing pay discrimination claims. That webpage has been changed to correctly note that that legislation “reset[s] the clock” for suing “with each paycheck affected by” an employer’s “discriminatory decision” about how to set an employee’s pay. Earlier, this webpage had stated that the Ledbetter Act is “legislation that would set the clock running when discriminatory action was discovered.”

The Ledbetter Act restarts the time for suing every time a paycheck is paid to a worker, not merely when an employee discovers that her paycheck was affected by discrimination, so under the Act, an employee can sue “decades” after discovering the alleged discrimination, despite needlessly delaying in bringing a lawsuit, as long as affected paychecks are still being received by the employee. The text of the Ledbetter Act can be found here at this link. (See also 42 U.S.C. 2000e- 5(e)(3)(a).)