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Lilly Ledbetter Is No Victim

By KAREN LEE TORRE

If liberals are productive at anything, it is manufacturing victims. Lilly Ledbetter is one of their fabrications. As a plaintiff-side employment litigator, I am expected to join the chorus championing a congressional override of the U.S. Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co. The bill is a political scam. If Congress wants to amend Title VII and greatly expand the statute of limitations for employment discrimination claims, it is certainly within its authority to do that, the wisdom of it aside. But supporters of the Ledbetter bill have engaged in dishonest rhetoric in portraying her as a victim of both her employer and the Supreme Court justices who affirmed the Eleventh Circuit’s dismissal of her claims as time-barred.

Liberals’ reaction to Ledbetter was expectedly hyperbolic and many commenced howling without even reading the decision. Ledbetter was politically exploited during the election. She became the Democrats’ poster victim. Barack Obama will carry off a public relations stunt by having Ledbetter at his side when he signs the ill-considered bill to so elasticize the statute of limitations for discrimination claims that employers will likely face a flood of expensive and frivolous lawsuits at a time when Obama wants them to stop sending jobs overseas.

I have represented many sex discrimination victims. I have won their cases. After 20 years of such efforts, I know a victim when I see one. Let me tell you something: Lilly Ledbetter is no victim. When Ledbetter issued, I reserved judgment as I wished to actually read the opinion first, something knee-jerk liberals rarely do. They are so politically motivated to cry foul that the actual legal merits of the case are of no concern to them.

Not only did I see a perfectly correct holding on the law, but damning facts. They are worth reviewing for Ledbetter is no justice-deprived saint.

Ledbetter waited until she retired to sue Goodyear for “discrimination” she allegedly suffered 12 years earlier. Goodyear, like many employers, awarded salary increases based on annual performance reviews. Ledbetter’s supervisor at the time of the alleged discrimination did not think much of her performance and she did not get a raise. (Nor did Ledbetter get a raise in the last two years of her employment – for the same reasons of weak performance, but notably she did not claim those decisions were discriminatory).

While she was working, Ledbetter never complained, filed no grievance, and Goodyear never knew that she thought that particular performance review was the product of gender bias.

Way more than a decade later, after Ledbetter walked out the door with her retirement benefits, she hit Goodyear with a lawsuit, the basis of which was the claim that the initial poor reviews affected her salary for the rest of her tenure. She creatively claimed her last few paychecks as the operative acts for purposes of the statute of limitations. She got away with it, for a while.

Much was made of a jury verdict in Ledbetter’s favor but no attention was given to her grossly unfair advantage at trial. The supervisor at the center of her now moss-covered claim was long dead. How convenient for Ledbetter – she hawked her case to a jury without the man she accused of sexism there to tell his side. And liberals think that Ledbetter was treated unfairly??

Here’s another fact ignored in the political rhetoric. Ledbetter, for unexplained reasons, abandoned an Equal Pay Act claim asserted in her suit. The Equal Pay Act does not contain Title VII’s filing limitations, nor does it require plaintiffs to prove intent. It was a much better claim, easier to prove, and it was timely. After abandoning it on appeal, Ledbetter essentially tried to squeeze the EPA claim into Title VII’s framework and she justly failed in the effort.

They ought properly to rename the bill as the Ledbetter Con Act of 2009. But she’ll stand next to Obama at the signing, like she was some kind of Rosa Parks. What a joke.

Karen Lee Torre, a New Haven trial lawyer, litigates civil rights issues in the federal courts. Her e-mail address is thimbleislands@sbcglobal.net.