One could assume, after President Barack Obama mentioned the Lilly Ledbetter Fair Pay Act of 2009 during Tuesday night’s presidential debate, that it is a magical talisman ensuring women get equal pay for equal work.
But if you were left wondering just how many women have benefited from the act, it’s because the president never mentioned it, and it’s because it addresses only a narrow legal problem affecting a tiny number of women. As the debate demonstrated, Obama is using his (limited impact) “women’s” legislation to divert attention from the plight of the millions of women who desperately need jobs.
So, just what is the Lilly Ledbetter Act about? The act, which overturns a 2006 Supreme Court decision, allows people to file pay discrimination suits based on alleged acts that occurred long ago. That’s it in a nutshell. The act is great for trial lawyers and those few plaintiffs who can muster up long-ago evidence, but nobody else.
A quick look at Lilly Ledbetter’s case gives some insights into the act’s limited reach.
When Lily Ledbetter began working at the Goodyear Tire & Rubber Company in 1979, she received the same pay as her male counterparts, but during the 1990s, she received a series of negative performance evaluations that affected her pay. Those evaluations included one in late 1997 and another in February 1998 whereby she was denied a pay raise.
In March 1998, she took the first step in alleging discrimination to the Equal Employment Opportunity Commission, or EEOC. That same year, Goodyear announced it was downsizing her plant and offered her an early retirement package, which she accepted.
Ledbetter filed suit in federal court in 1999. The subsequent jury trial found that “it was more likely than not” that Goodyear had discriminated against Ledbetter in those evaluations and awarded her damages. Goodyear appealed the decision, arguing that Ledbetter had filed her complaint with the EEOC -- the action that flipped the switch on her discrimination case -- too long after those earlier evaluations.
Goodyear further argued the only pay decisions that should be considered were the ones made no later than September 1997, 180 days before her initial filing with the EEOC in March 1998, and those decisions were not made in a discriminatory way. In a 2005 decision, the appeals court agreed with Goodyear on all three points
Ledbetter appealed to the Supreme Court -- but only on the issue of whether she was too late in alleging discrimination prior to September 1997. She did not challenge the appeals court’s decision that Goodyear’s late-stage pay decisions were done in an equitable way.
In its 2007 decision, the Supreme Court held, by a 5-4 vote, the appeals court was correct in finding that Ledbetter was too late in alleging discrimination, and agreed with Goodyear that the only evaluations that could be considered were the ones which had occurred 180 days before Ledbetter filed her initial EEOC paperwork in March 1998.
In her dissent, Justice Ruth Bader Ginsburg said the Supreme Court was overlooking how pay discrimination often occurred -- in “small increments.”
The SCOTUS decision caused a great deal of outrage on the left, spurring the then-newly elected Democratic House, Senate and president to enact, with great fanfare, the “Lilly Ledbetter Fair Pay Act of 2009” as their very first item of legislation.
With all the hoo-haw, one might think the act was radically reforming equal pay legislation, establishing some new, vastly more lenient standard for proving discrimination. Not quite. All the act did was lift the 180-day time limit on filing a complaint after a pay decision was made.
In fact, the legislation codified the EEOC’s pre-2007 practice of accepting cases involving incidents older than the 180-day limit. (And yes, that liberalization was going on during -- gasp -- George W. Bush’s administration.)
Thus, the ballyhooed Lilly Ledbetter Act did little more than turn back the clock to those days before the SCOTUS decision.
Listening to Obama talk about the act, it would seem there are no time limits at all to filing an equal pay case, but that’s not so. According to the EEOC, a person has two to three years, depending on circumstances after receiving his/her last discriminatory paycheck, to file suit. Obama’s rhetoric makes the Lilly Ledbetter Act sound like the cure-all for discrimination, but as we’ve seen, the reality is very different.
Frankly, the Lilly Ledbetter Act is absolutely meaningless to the thousands of women who have lost their jobs due to Obama’s failed economic policies. It’s also meaningless to those women who are scared because their loved ones have lost their jobs.
However, if his statements during the debate are any indication, it appears Obama cares more about preserving the ability of a few women to file lawsuits than he does about implementing policies to help create jobs for everyone. That attitude is not what we need in America right now.
So the next time someone slams Mitt Romney over the Lilly Ledbetter issue, hopefully you’ll realize that it’s intended to divert your attention from President Obama’s sorry record on job creation. America can, and must, do better.
Joanne Butler is a graduate of the Kennedy School of Government at Harvard University and a former professional Republican staff member at the U.S. House of Representatives Ways and Means Committee.