Wednesday, October 24, 2012

Employment Law in the Presidential Debates . . . Sort Of

Well, the good news is that the topic of employment law came up in the presidential debates. Unfortunately, I can not say it was a particularly enlightening conversation. During the second debate (transcript here), President Obama brought up Ledbetter:
[T]he first bill I signed was something called the Lilly Ledbetter bill. And it was named after this amazing woman who had been doing the same job as a man for years, found out that she was getting paid less, and the Supreme Court said that she couldn't bring suit because she should have found out about it earlier, when she had no way of finding out about it. So we fixed that.
Ummm, actually that's not even close to an accurate description of the Supreme Court's ruling (opinion here). Somewhere, Justice Alito (who wrote the opinion) is shaking his head and mouthing "not true." Had Ms. Ledbetter filed her lawsuit upon discovery of her employer's discrimination, she could have argued that her suit was timely under something called "the discovery rule." However, as the Supreme Court noted:
We have previously declined to address whether Title VII suits are amenable to a discovery rule. Because Ledbetter does not argue that such a rule would change the outcome in her case, we have no occasion to address this issue.
In fact, Ms. Ledbetter initiated her claim (by submitting a questionnaire to the EEOC) in 1998. According to her deposition testimony, she knew she was making less than her peers in 1992 and even knew the extent of the disparity as early as 1994 or 1995.

So, surely Governor Romney eloquently explained President Obama's misstatement of the case and detailed his own position on the Lilly Ledbetter Fair Pay Act, right? Yeah, actually he dropped his now (in?)famous comment about "binders full of women" and made some vague argument about:
adapting to a — a flexible work schedule that gives women the opportunities that — that they would otherwise not be able to — to afford.
It was not clear how these flexible schedules would be implemented. I can't say I was particularly impressed by either candidate's response. I guess I'll call it a draw.

Image: White House seal - Not official use.