Bench Memos

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Re: Leahy’s Ledbetter Laugher


I offer here a few additional observations on Senator Leahy’s ridiculous disparagement (a “crude allegation”) of my statement that Mrs. Ledbetter “had waited more than five years after she learned of the discrimination to file her EEOC charge” was a “crude allegation”—and on Mrs. Ledbetter’s response to Leahy.  (But keep in mind, above all, that this side issue is utterly irrelevant to the central point in my testimony about the Ledbetter case—that the vehement denunciation by Senator Cardin of the Court rests on his gross misreading of the ruling.  Ditto, as it happens, for many other Democrats.)

1.  Here’s Stuart Taylor’s most detailed account of Mrs. Ledbetter’s delay:

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.”

Yet contrary to Obama’s assertions, Ledbetter did not “immediately” file suit — not in 1992, and not in 1995. Instead, she waited to sue until 1998, when her retirement was imminent. This was well over five years after she had learned of the pay disparities. It was also after a supervisor whom she blamed for much of the alleged discrimination had died, making it impossible for the employer to refute those allegations.

2.  Taylor and others have made the same point repeatedly—and in very strong language (e.g., “rampant falsehoods”)—since the Ledbetter ruling was issued in May 2007.  Yet, Taylor tells me, no one has ever written to him to dispute the accuracy of his statements on this point.  Hmmm, I wonder why.

3.  If Mrs. Ledbetter was a victim of unlawful discrimination, she would deserve our sympathy, irrespective whether she failed to pursue her rights in a timely way.  But that sympathy shouldn’t lead folks to excuse false statements about her case.

I say “If” because, according to Taylor,

It’s less than clear, by the way, that Ledbetter was a victim of discrimination at all. Her years of poor performance evaluations, plus repeated layoffs affecting her eligibility for raises, convinced a federal magistrate judge that her relatively low pay did not prove sex discrimination. The jury disagreed and awarded Ledbetter back pay and punitive damages. Maybe the jury was right; maybe the magistrate judge was.


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