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McCain and Ledbetter
McCAIN AND LEDBETTER....Listening to Hillary's speech last night, Marian turned to me and asked, "Does McCain really oppose equal pay for equal work?" It was a little complicated to try and answer that while the speech was still in progress, so I just mumbled something about his voting record and turned back to the TV. Ramesh Ponnuru, however, asks the question more precisely:
Hillary Clinton on McCain: "In 2008, he still thinks it's okay when women don't earn equal pay for equal work." Right: Opposing the Lily Ledbetter Act means approving of unequal pay for women. What a disgusting comment.
But what's disgusting about it, from a conservative perspective? She seems to be making a point of being scrupulously accurate. In this context, saying 'it's okay' amounts to saying that the thing in question is maybe a little bad, but it doesn't matter much, so you needn't — therefore shouldn't — do anything about it. As in: 'do you need a band-aid for that?' 'No, it's ok.' A sense that unequal pay for women 'is ok', in this sense, is precisely the reason one would oppose the Lily Ledbetter Act.
Right. Ledbetter worked at Goodyear Tire for years, eventually discovered that she had been the victim of persistent wage discrimination, sued under Title VII of the Civil Rights Act, and then lost her case when the Supreme Court ruled that you can only bring wage discrimination cases within 180 days of the discrimination happening. Since practically no one ever finds out about this kind of thing within 180 days, it effectively gutted Title VII completely.
Now, one of the arguments legal conservatives made at the time was that even if you thought this was a strained, absurdly narrow reading of the law, it was a reading of a law. Since Congress can change laws, it's reasonable for the court to make cautious, narrow readings in statutory cases in the knowledge that they aren't necessarily preserving ancient prejudices in amber forever. Just change the law!
Which, needless to say, the Democratic congress tried to do. But Republicans made it a cause celebre, insisted the Republic would fall if victims of wage discrimination actually had reasonable recourse in the courts, and filibustered the attempt. John McCain supported the filibuster, which means that for all practical purposes, the Title VII ban on wage discrimination is a dead letter. It might as well not be on the books.
So: does McCain think it's OK to oppose equal pay for equal work? He sure doesn't seem to mind it much. He didn't propose any changes to the Ledbetter Act or work to make it more palatable to conservatives. He just opposed it (though, as usual, he skipped the actual vote). So now, if you're the victim of wage discrimination, you essentially have no recourse. And John McCain thinks that's fine.
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I posted this at crookedtimber, so I apologize if you've read it already. But the idea that opposing Ledbetter is the same as saying unequal pay for women is 'ok' is just wrong. (And by the way there is no way in hell I'm voting for McCain so this isn't a defense of him at all.
The Lily Ledbetter legislation is bad because it attempts to enshrine a weird administrative workaround which was attempting to avoid a legislative statute of limitations instead of working with one of the tried and true methods of dealing with some of the unfairnesses caused by statutes of limitations.
Essentially the original law made a very short statute of limitations (6 months from the time of the discriminatory decision).
The people administering the law thought that was too harsh and created an elaborate workaround which counted each paycheck as a separate discriminatory decision.
The Supreme Court said that wasn't a good reading of the law.
Statutes of limitations exist for a variety of very good policy reasons?they favor quick action, they allow companies to discover bad action more quickly, they allow the evidence to be examined while it is still fresh, they make it more likely that more witnesses will be available, and probably other things I haven't thought of.
Now Congress wants to look at it again. There are lots of normal things you could do?with well established legal histories?which would look at how the problems resolved by short statutes of limitations can be solved without essentially doing away with them completely.
First, you could make a longer statute of limitations more in line with normal violations?that would typically put it in a 2-4 year window. Robbery in many states has a statute of limitations of 5 years or less, it is odd to make it longer than something like that.
Second, you could use the discovery rule. You could have the statute of limitations run from the plaintiff's discovery of the discrimination and use the "knew or should have known" standard. This is a tested method of dealing with the issue.
Instead, Congress just wanted to enshrine the weird administrative workaround.
This workaround has some perverse effects because it was a workaround rather than a functional policy. It completely eviscerates the statute of limitations for employees who continue working at a company. Every single time they get paid it refreshes the possibility of suing for punitive damages. I understand that 6 months seems to short, but potentially hitting the company for the decision of a manager gone 15 years ago is too long.
The flip side is that if you quit for whatever reason (including because you suspect discrimination), you are back on the super-short 6-month statute of limitations.
In short, this isn't so special of a problem that we have to throw out tried and tested tort considerations. It isn't as if the US is notoriously plaintiff unfriendly, it is one of the most plaintiff friendly venues in the world.
If you think the statute is too short, make it more in line with other civil statutes of limitations.
If you think discovery is a big problem, utilize the discovery rule which has successfully operated in all sorts of other litigation arenas.
Don't enshrine a jury-rigged administrative workaround into law when you could just as easily use normal methods that have a long and tested history.
I don't even understand why Democrats took this direction except for that they wanted to rub the Supreme Court's nose in it or something.
I posted this at crookedtimber, so I apologize if you've read it already. But the idea that opposing Ledbetter is the same as saying unequal pay for women is 'ok' is just wrong. (And by the way there is no way in hell I'm voting for McCain so this isn't a defense of him at all.
The Lily Ledbetter legislation is bad because it attempts to enshrine a weird administrative workaround which was attempting to avoid a legislative statute of limitations instead of working with one of the tried and true methods of dealing with some of the unfairnesses caused by statutes of limitations.
Essentially the original law made a very short statute of limitations (6 months from the time of the discriminatory decision).
The people administering the law thought that was too harsh and created an elaborate workaround which counted each paycheck as a separate discriminatory decision.
The Supreme Court said that wasn't a good reading of the law.
Statutes of limitations exist for a variety of very good policy reasons?they favor quick action, they allow companies to discover bad action more quickly, they allow the evidence to be examined while it is still fresh, they make it more likely that more witnesses will be available, and probably other things I haven't thought of.
Now Congress wants to look at it again. There are lots of normal things you could do?with well established legal histories?which would look at how the problems resolved by short statutes of limitations can be solved without essentially doing away with them completely.
First, you could make a longer statute of limitations more in line with normal violations?that would typically put it in a 2-4 year window. Robbery in many states has a statute of limitations of 5 years or less, it is odd to make it longer than something like that.
Second, you could use the discovery rule. You could have the statute of limitations run from the plaintiff's discovery of the discrimination and use the "knew or should have known" standard. This is a tested method of dealing with the issue.
Instead, Congress just wanted to enshrine the weird administrative workaround.
This workaround has some perverse effects because it was a workaround rather than a functional policy. It completely eviscerates the statute of limitations for employees who continue working at a company. Every single time they get paid it refreshes the possibility of suing for punitive damages. I understand that 6 months seems to short, but potentially hitting the company for the decision of a manager gone 15 years ago is too long.
The flip side is that if you quit for whatever reason (including because you suspect discrimination), you are back on the super-short 6-month statute of limitations.
In short, this isn't so special of a problem that we have to throw out tried and tested tort considerations. It isn't as if the US is notoriously plaintiff unfriendly, it is one of the most plaintiff friendly venues in the world.
If you think the statute is too short, make it more in line with other civil statutes of limitations.
If you think discovery is a big problem, utilize the discovery rule which has successfully operated in all sorts of other litigation arenas.
Don't enshrine a jury-rigged administrative workaround into law when you could just as easily use normal methods that have a long and tested history.
I don't even understand why Democrats took this direction except for that they wanted to rub the Supreme Court's nose in it or something.
Why does John McCain not support working women?
Answer: He probably doesn't oppose the Ledbetter Act on principle; but McCain has no principles except winning the election, and his political calculus was that not supporting the Ledbetter Act was required for his viability.
I don't know why Democrats need to be so honest. Republicans would have no problem saying if you opposed the Ledbetter Act you were for wage discrimination.
Exactly what David said: don't get lost in those ultimately irrelevant details. Just say John McCain is against equal pay for equal work. Blanket the airwaves with ads with Ledbetter herself saying it.
The victims of wage discrimination have opportunities for recourse, just not opportunities for recourse through the courts and through the legislatures. The Supreme Court recently upheld the right of American citizens to protect themselves with lethal force.
"I don't know why Democrats need to be so honest."
To avoid becoming Republicans.
John McCain has flip-flopped so much that even this woman who wants to support him doesn't know what his position is.
"Does McCain really oppose equal pay for equal work?"
Democrats need to seek out every opportunity to be asked this question in very public fora, so that they can answer forgivingly:
"Well, no, I'm sure he doesn't oppose it in his heart, just as policy."
I posted this at crookedtimber, so I apologize if you've read it already. But the idea that opposing Ledbetter is the same as saying unequal pay for women is 'ok' is just wrong. (And by the way there is no way in hell I'm voting for McCain so this isn't a defense of him at all.
The Lily Ledbetter legislation is bad because it attempts to enshrine a weird administrative workaround which was attempting to avoid a legislative statute of limitations instead of working with one of the tried and true methods of dealing with some of the unfairnesses caused by statutes of limitations.
Essentially the original law made a very short statute of limitations (6 months from the time of the discriminatory decision).
The people administering the law thought that was too harsh and created an elaborate workaround which counted each paycheck as a separate discriminatory decision.
The Supreme Court said that wasn't a good reading of the law.
Statutes of limitations exist for a variety of very good policy reasonsthey favor quick action, they allow companies to discover bad action more quickly, they allow the evidence to be examined while it is still fresh, they make it more likely that more witnesses will be available, and probably other things I haven't thought of.
Now Congress wants to look at it again. There are lots of normal things you could dowith well established legal historieswhich would look at how the problems resolved by short statutes of limitations can be solved without essentially doing away with them completely.
First, you could make a longer statute of limitations more in line with normal violationsthat would typically put it in a 2-4 year window. Robbery in many states has a statute of limitations of 5 years or less, it is odd to make it longer than something like that.
Second, you could use the discovery rule. You could have the statute of limitations run from the plaintiff's discovery of the discrimination and use the "knew or should have known" standard. This is a tested method of dealing with the issue.
Instead, Congress just wanted to enshrine the weird administrative workaround.
This workaround has some perverse effects because it was a workaround rather than a functional policy. It completely eviscerates the statute of limitations for employees who continue working at a company. Every single time they get paid it refreshes the possibility of suing for punitive damages. I understand that 6 months seems to short, but potentially hitting the company for the decision of a manager gone 15 years ago is too long.
The flip side is that if you quit for whatever reason (including because you suspect discrimination), you are back on the super-short 6-month statute of limitations.
In short, this isn't so special of a problem that we have to throw out tried and tested tort considerations. It isn't as if the US is notoriously plaintiff unfriendly, it is one of the most plaintiff friendly venues in the world.
If you think the statute is too short, make it more in line with other civil statutes of limitations.
If you think discovery is a big problem, utilize the discovery rule which has successfully operated in all sorts of other litigation arenas.
Don't enshrine a jury-rigged administrative workaround into law when you could just as easily use normal methods that have a long and tested history.
I don't even understand why Democrats took this direction except for that they wanted to rub the Supreme Court's nose in it or something.
"I am all in favor of pay equity for women, but this kind of legislation, as is typical of what's being proposed by my friends on the other side of the aisle, opens us up to lawsuits for all kinds of problems," the expected GOP presidential nominee told reporters. "This is government playing a much, much greater role in the business of a private enterprise system."
"They need the education and training, particularly since more and more women are heads of their households, as much or more than anybody else," McCain said. "And it's hard for them to leave their families when they don't have somebody to take care of them.
"It's a vicious cycle that's affecting women, particularly in a part of the country like this, where mining is the mainstay; traditionally, women have not gone into that line of work, to say the least," he said.
---
So yes, he opposes equal pay for equal work. He believes that if a woman is payed less for the same work, the right solution is to go find a new job.
Sebastian's detailed dissent, there is nothing dishonest about saying opposing the Ledbetter Act means opposing equal pay for equal work.
Let the McCain camp got into the nitty gritty details of why this might not be so. And good luck with that.
What Kevin's elaborate defense proves is that, as always, a liberal is someone who won't take his own side in an argument.
It wasn't a real filibuster but one of those pro forma deals where a cloture vote is taken and when cloture fails the Senate moves on.
I say let the Senate grind to a halt and make the Republicans literally stand and talk the bill to death. I believe it is a gambit worth taking.
Make the Republicans explain why the Government isn't getting anything done because they shut it down to deny working women the opportunity to have equal pay.
As long as there is no real cost to filibustering Democratic bills the Republicans will pull that lever routinely.
Nice point. And, right:
"x is o.k." is one (o.k.) way to say "x is permissible." McCain thinks it's permissible (i.e.: not impermissible), ergo he thinks it's o.k.
I think that Ranesh Ponnuru, like all the other ultra-right shills at NRO, is disgusting. Once he's healed himself, he can start dispensing medicine to others.
It's typical that Democrats only see Ledbetter as a woman's issue. It's much broader than that -- it's basic workplace fairness. "The Supreme Court said it was OK for a company to hide discriminatory pay for many, many years, and that when Lily Ledbetter found out, there was nothing she could do about it. The Democarts passed a law fixing that crazy ruling by the Republican-dominated Supreme Court, but the Republicans in Congress blocked it. Guess how John McCain voted."
A lot of perfectly legitimate them-against-us hay can be made out of this -- for all Americans. Turn "Lily Ledbetter" into an issue that "just won't go away."
Of course McCain does not think that women should not be paid the same as men for doing the same work. I dare you to show me even one person in public life today who takes that position.
The issue in Ledbetter was how many years she would have to bring a suit for discrimination, not whether or not she was entitled to the same pay for the same work. Now, Kevin, you are not a lawyer, and perhaps you don't understand the principles behind statutes of limitation. Claims are cut off after a certain period of time because witnesses disappear, their memories fade, documents are thrown away, and there is a value to telling people to get on with it, bring their claims in a timely way. Potential defendants -and that includes criminal defendants, too, except for murder - should be able to get on with their lives at some point without worrying about claims.
In Ledbetter, the only issue was how long she would have to bring a claim after the act of discrimination.
Any reasonable person would have to concede there were good arguments on both sides. You prefer the longer statute of limitations; that's fine, it's not unreasonable, but it's a malicious lie for you to accuse McCain of favoring paying women less than men for the same work.
Sheesh, Kevin... what's so insidious about the ruling is that it says that one can only file claim within 180 days of the FIRST instance of discrimination--not simply within 180 days of it HAPPENING, as you say. That would be, well, relatively reasonable. As it stands, it's relatively impossible.
Whenever you put unreasonable burdens in proving pay discrimination, you definitely do not have a problem with paying women less than men. The problem with McCain and this issue is that McCain simply gives it to the rightwing to do his thinking on it for him. He doesn't give a damn either way.
How do you measure "equal work"?
Fine for factory workers doing piece work.