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Why Lilly Ledbetter should quit while she’s behind

Earlier this month, I reported on the destruction during the Kagan hearings of the Democrats’ attempt to use Lilly Ledbetter to attack the Roberts court as “activist.” Ledbetter appeared as a witness to argue that the decision in her case left plaintiffs who don’t discover concealed discrimination for many years unable to overcome the statute of limitations defense, and thus unable to remedy wrongdoing. Ed Whelan and Robert Alt shredded this claim.

Now, prompted by Senator Leahy, Ledbetter tries to resurrect her story. She does so in the same way she has perpetuated the story — through false, misleading, and irrelevant statements.
Let’s begin with some background, for those who aren’t familiar with this saga. Ledbetter lost her pay discrimination case because she did not complain to the EEOC in timely fashion about the alleged gender-based pay disparities she sued over. The Ledbetter-based attack on the Roberts court is predicated on Ledbetter’s claim, post litigation, that she didn’t know about the alleged pay discrimination until “someone left an anonymous note in my mailbox showing my pay and the pay for the three males who were doing the same job, just on different shifts.” According to Ledbetter, “when I saw that note, it just floored me. I was so shocked at the amount of difference in our pay for doing the same exact job. And I went immediately to EEOC.”

Had this been the first Ledbetter heard of pay discrimination against her, she would have survived the defendant’s claim that she waited too long to go to the EEOC. The time for filing a charge with the EEOC does not begin to run until a plaintiff has reason to think she was discriminated against.

Ledbetter did not attempt to avail herself of this rule because the argument was precluded by her sworn deposition testimony. At her deposition she admitted that she knew by 1992 (six years before she complained to the EEOC) that her pay was out of line with her peers. She also testified that in 1995 (three years before her complaint), she spoke to her supervisor about the problem, telling him that “I knew definitely that they were all making a thousand at least more per month than I was and that I would like to get in line.”

Clearly, then, the ruling in Ledbetter’s case did not stand for the proposition that employers can get away with hidden pay discrimination. It stands for the proposition that Ledbetter could not avoid a statute of limitations defense by relying on the current effects of past discriminatory pay decisions that she failed timely to challenge.

Against this background, and having been called out by Whelan and Alt, Ledbetter attempts to salvage whatever might be left of her credibility. First, she complains that she lacked the opportunity to confront Whelan and Alt. Second, she tries to take on the merits of their testimony.

On the first point, Ledbetter is aided by the ever-helpful Chairman Leahy. He was not present when Whelan and Alt testified; nor, as I understand it, was any Democratic Senator except for the very junior Sen. Kaufman, who was stuck with the task of presiding. But word of the Whelan-Alt demolition clearly got back to Leahy. He thus invited Ledbetter to respond to Whelan’s “crude allegation” that she waited more than five years to file her EEOC charge and to Alt’s statement that the Democrats’ Ledbetter narrative is “fictional.”
Ledbetter responded in part by whining that the hearings were “supposed to be about Solicitor General Kagan’s qualification for the Court.” In addition, she sniffed that “if I’d known that Professor Alt and Mr. Whelan were going to use the hearings to attack me personally, I’d have stayed around so they could do it to my face.”

This line is disingenuous at multiple levels. First, Ledbetter’s claim that the hearing was supposed to be about Kagan overlooks the fact that (a) she has no expertise regarding Kagan’s fitness for the Supreme Court and (b) she was brought in by Committee Democrats for the sole purpose of rehearsing her attack on the decision in her case (as Petula Clark might be brought to a struggling night club to sing “Downtown” one more time). With the exception of a few sentences, that’s what her testimony was about. It is absurd and cowardly for Ledbetter now to claim that her attack should go unanswered because the hearing pertained to Kagan.
Second, it was Leahy who insulated Ledbetter from what he probably knew was going to a withering attack by scheduling her for a panel that did not include Whelan and Alt. I know from communications I had with Alt’s office that he understood Ledbetter would appear with him on the panel. Alt even obtained a copy of Ledbetter’s deposition transcript with which to confront her. He was relishing the opportunity to use it “to her face.” The Democrats spared her that humiliation.

Third, Ledbetter has been confronted with her deflating testimony before. Eric Dreiband, former General Counsel of the EEOC, did so when they testified on the same panel on January 24, 2008. Ledbetter had no good answer then and, as demonstrated below, she has none now.
Ledbetter admits in her letter to Leahy that “for some time I had suspected that I was getting paid less than men.” But, she adds, when she told her manager about this, he denied any discrimination.

However, Ledbetter’s sworn testimony was not that she “suspected” she was making less than comparable males. She testified that she knew by 1992 that her pay was lower than her peers and that she learned about the amount of the difference “probably about 1994 and ’95.” She also testified that In 1995, she spoke with her supervisor about her pay and “told him at that time that I knew definitely that they were all making a thousand at least more per month than I was and that I would like to get in line.”

It may well be that Ledbetter’s supervisor denied that she made less than male employees. But a plaintiff cannot delay the filing of a lawsuit or a complaint until the defendant admits wrongdoing.

That, of course, is why Ledbetter never argued to the Supreme Court that her failure to go to the EEOC until 1998 was excused by lack of information about how her pay compared to similarly situated males. This argument has been conjured up, after the fact. And it has been made only in a political context, where it is far more difficult to expose and where Ledbetter’s Democratic handlers can run interference for her, as they are trying to do now.

Ledbetter, in sum, is not an injured party in the Kagan confirmation hearings. She is instead an offending party — her offense being a disregard for the truth.

If Chairman Leahy thinks otherwise, let him hold a special hearing on “the Ledbetter decision and ‘judicial activism,’” and have Ledbetter testify alongside Whelan and/or Alt. And let Leahy stick around this time for the fun.

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