And the Beat Goes On

Top court's unfair play against fair play
Clarence Page

April 27, 2008

Lilly Ledbetter worked in a Goodyear Tire & Rubber Co. plant in Gadsden, Ala., for 19years before she received a valuable tip from an anonymous source: She was making $6,500 less than the lowest-paid guy who had her job.

She did what anybody might do. She sued. She was in for a surprise. So were a lot of civil rights experts. If any cases were intended to be covered by Title VII of the 1964 Civil Rights Act, they thought, it was cases like hers.

Indeed, even the women I know who are hesitant feminists, the middle-of-the-road womenfolk who insist, "I'm not a feminist, but . . ." usually tend to follow that "but" with, "I believe that women should receive equal pay for equal work."

But after Ledbetter's case made it all the way up to the U.S. Supreme Court last year, the high court ruled 5-4 that the law did not apply to her. She was too late. She should have filed her complaint years earlier when the original discrimination occurred.

Indeed? As a legal matter, the decision was defensible, but as a practical matter it was inexcusable. One might even call it judicial activism, tilting a law intended to protect workers against discrimination into one that gives a big edge to employers who discriminate.

The law said she had to file her discrimination complaint within 180 days of the alleged unlawful discrimination. The surprise came with the Supreme Court's interpretation of when the clock is supposed to start on that 180 days.

Since the 1960s, nine federal circuit courts and the Equal Employment Opportunity Commission had ruled that the 180-day clock started—or restarted—every time the employee received an unequal paycheck. After all, it was reasoned, every unequal check is an illegal act of discrimination. But imagine Ledbetter's surprise when the high court ruled that, no, the 180-day statute of limitations began with her very first discriminatory paycheck almost 20 years earlier.

In other words, if employers manage to discriminate against workers for at least 180 days without getting caught, they're home free, exempt from discrimination lawsuits.

In her dissent, Justice Ruth Bader Ginsburg called on Congress to step in with new legislation to clarify and restore the intent of the original civil rights act. A bill to do just that was named after Ledbetter and passed the House last year. But the Senate version failed last week to win enough support to survive a threatened veto by President Bush.

And, like almost every other issue of consequence these days, the Lilly Ledbetter bill looms as a defining issue in the presidential race.

As luck would have it, Arizona Sen. John McCain, the presumptive Republican nominee, missed the vote on the bill because he was on a trip through the South.

News reports described him as visiting places that Republican candidates don't usually see, usually because they don't have to. He traveled to locations identified with wars against poverty and discrimination—like Selma, Ala., scene of a historic clash between police and civil rights volunteers seeking equal voting rights in 1965.

So it's ironic that he missed the vote on one of the most important civil rights bills of our time. But that's OK, equal pay fans. If he had been there, he would have voted against it because, he told reporters, he agreed with Bush that it would prompt a flood of lawsuits. Actually, it wouldn't—because it hasn't. We know from experience with the original law that there was no flood of lawsuits before the high court overturned it, and there would be no reason to have a deluge now.

Besides, in an unsuccessful attempt to satisfy conservatives, new caps were put onto the total damages that can be awarded. The proposed law would limit claims filed to a two-year maximum. That means, even if the bill is revived this year and wins enough votes to override Bush's threatened veto, the most redress that someone like Ledbetter could hope for after 19 years of discrimination would be two years' worth of redress.

Sen. Edward Kennedy, a Massachusetts Democrat, would like to revive it this year, although that's a long shot. Members of Congress like to avoid controversy in election years even more than they try to avoid controversy in other years.

But because McCain is going to face either Illinois Sen. Barack Obama or New York Sen. Hillary Clinton in November, both of whom support the Ledbetter bill, there's time for the issue to receive a national spotlight.

Now that we know how much McCain appreciates civil rights history, it's time to see what kind of civil rights history he plans to make.

Clarence Page is a member of the Tribune editorial board. E-mail: cptime@aol.com.