You are a far, far too generous person. *IF* those republican law makers really didn’t know how the legal system works, you might have a point. Personally, I think they treat the legal system the same way they treat women’s reproductive systems and the concept of a Supply Side Economy.

They know (well enough, at least) that things don’t work like they say, but it’s more profitable for them to carry water for those who benefit from these weird warps of reality. As long as it doesn’t directly, instantly impact Old Rich White Men they don’t care who gets hurt.

They will be exposed to “decades-old discrimination claims that they have no ability to defend… because they’re guilty

Ahh, that’s better.

Actually they’re thinking “Maybe if I whine loud enough they wont make me pay because I’m an annoying rich male.”

But, if the companies aren’t doing anything wrong then they have nothing to fear, right?  That’s the mantra I was given as I watched the 4th Amendment burn over the last 7 years.

They will be exposed to “decades-old discrimination claims that they have no ability to defend... because they have been living in a cave since 1964, and are unaware that discrimination against women is illegal.

“The problem isn’t so much their opposition to the suits as their complete and total ignorance of the legal system”

They’re not ignorant, they’re banking on the general public’s complete and total ignorance.  They figure that if they say this is going to happen, what’s going to get reported on in the mainstream media is what they said, not that it’s bullshit.  The blip on the CNN crawl is going to be the quote, not “Idiot senator lacks comprehension of legal system basics.” It’s kind of like how newspapers will happily quote some whackjob anti-choicer about Plan B being an abortifacient but very rarely follow that up with the fact that Plan B is not and the person quoted is incorrect.

Does nobody actually read the language of the bill?

decades-old discrimination claims that they have no ability to defend

That comment is based on the fact that the statute of limitations is basically limitless now. What he is referring to is the fact that the people who actually discriminated could be long gone from the company, but the discriminated-against party basically has an unlimited amount of time to sue. It becomes “impossible to defend,” according to critics, because the people that did the hiring are no longer there to defend themselves.

Whether you think that is a legitimate reason or not, it is hardly evidence of people “not understanding the legal system.” That statement is silly, and I’m guessing was more to be funny than to actually make a point.

Re: the legal system - all causes of action in civil suits have statutes of limitations that are directly tied to the ability to defend the claim. For example, contract claims might be as long as ten years because the contract is an easy piece of evidence to bring in. Car accidents, on the other hand, might be as short as 2 years, because evidence and witnesses disappear over time.

Thus, creating a statute of limitations that is basically limitless is actually contrary to “normal” rules regarding filing law suits because it makes it difficult to defend. Remember, the whole point of a law suit is to give both parties the ability to lay out their claims. There is no reason why someone being discriminated against needs an unlimited amount of time to file suit.

Except, PrivatePigg, that’s not what the law does at all. “The bill would change the law to begin a new 180-day statute of limitations with every paycheck.”

It retains an exceedingly reasonable statute of limitations. What it does is redefines the offense to escape from the absurdly narrow construction SCOTUS placed on the original language. SCOTUS said the offense only occurred the very first time a woman received discriminatory pay, the act says it occurs every time discriminatory pay decisions occur. With a perfectly normal statute of limitations.

So John Kline is either in error, full of crap, or both.

PrivatePigg, the Ledbetter act was to overturn a SCOTUS decision that gave victims of gender discrimination 180 days from the time of the initial act of discrimination to file a claim.

Unsurprisingly, our new troll wants to use a technicality to make discrimination against women legal.  I shouldn’t be shocked, but I am.  Pigs like PrivatePigg are actually seeking ways to pay women less for equal work.  That’s a political opinion that I would think would belong in the dustbin of history, right next to segregated buses.  But I have zero doubt that if they tried to bring back “black people in the back”, Pigg would defend that and claim it’s not racist, and how dare you suggest otherwise.

There’s a new troll?

What he is referring to is the fact that the people who actually discriminated could be long gone from the company, but the discriminated-against party basically has an unlimited amount of time to sue.

Bzzt.  Sorry.  You fail at reading comprehension.  The party who was discriminated against has 180 days to sue from the time that they discover the discrimination.  Once that 180 days is up, the window closes. 

What you—and the Supreme Court—argued was that every employee should automatically file a lawsuit against their employer within 6 months of being hired just in case they’re being discriminated against, because if you don’t file within 6 months of it happening, you’re shit out of luck.

Please explain to us how having every employee in the United States file a pre-emptive lawsuit against their employer is preferable to allowing people to sue within 6 months of finding out they were being discriminated against.

They will be exposed to “decades-old discrimination claims that they have no ability to defend,”

Well, if the pay differential was only perpetuated decades ago, and they’ve started paying these people fair and equal wages in more recent years, the amount of money they owe should be less, yes?

(And this is my elected jackass.  I am so not happy.)

Representative Howard P. McKeon, Republican of California, said businesses could be held liable “even if the individual responsible for the alleged discrimination is no longer with the company, or perhaps not even living.”

Shorter Rep McKeon: “If a manager defrauds an employee on behalf of their company while said company turns a deliberate blind eye rather than enforce the law, the company shouldn’t be liable.”

Fuck that and the congressperson it rode in on.

And in fact, if the pay differential was only perpetuated decades ago, the statute of limitations will have long since run out, and they will NOT be exposed to such claims.

But what he’s talking about, I suspect, are in fact current discrimination claims that go back decades.  Which doesn’t change the fact that a) it was illegal then and b) it is illegal now.

There is no reason why someone being discriminated against needs an unlimited amount of time to file suit.

As pointed out, you have six months to file suit from the time you discover the discrimination, which is the entire point. 

The old law/USSC decision treated only the initial decision to discriminate as a discriminatory act, which led to a rather bizarre and counterproductive setup where a company was free and clear if they could just hide their discrimination for six months from the initial date of discrimination (which is easy enough - a new employee or a new promotion doesn’t exactly lend itself to asking everyone else what they get paid).  The new law recognizes that the person being discriminated against has fewer means to discover that they’re being harmed, and shapes the statute of limitations around their ability to discover the harm. 

The other problem with the “no longer there to defend themselves” question is that given a six month statute of limitations, there’s always the possibility that the person who made the decision for the company will be fired, gone and/or dead.  This is why we’re able to sue the company - it maintains ultimate responsibility for the actions committed by its workers in the scope of employment. 

It’s almost like I wrote this in a post somewhere…

@Mnemosyne,

I’m having trouble finding the part of the law that limits lawsuits to 180 days after the initial discovery of discrimination, but of course there’s a lot of law and I could easily have missed something.  Can you point me to that clause?

Unless you mean that they’re limited to 180 days after “discovering” that any subsequent paycheck is in line with previous discriminatory paychecks.  In which case I guess the point would be to make employers responsible for reviewing their compensation distribution to ensure that it’s not discriminatory.  I am worried that businesses will just treat this as an additional risk of doing business, instead of actually fixing the problem, and investors will just price in the chance of a lawsuit on the basis of decades-ago decisions.  It might have been a better idea to legislate transparency (making it easier to discover discrimination sooner) and extend the statute of limitations by some shorter fixed period.

I deal with lawyers on a daily basis in the course of their character and fitness investigations to become members of the bar.  I gotta say, most of the jokes are pretty fair.

Snark aside, I’m excited at how quickly this new administration has jumped right into things.

The Piggster is just upset that some people who’ve broken the law will be held accountable, unlike the Bush/Cheney administration.

That is so unfair!...  :(

PrivatePigg seriously undermined his own point further, by pointing out that I have two years to file suit in case of, his example, a car accident.

Now a car accident is a pretty noticeable event! If it is reasonable to give a plaintiff two freaking years before filing suit, when the alleged tort is something they would have noticed the very second it actually occurred, why is it only reasonable to give a plaintiff just half a year to file over employment discrimination, which is easily hidden and deniable?

If a car accident happens, everyone involved who owns and is operating a vehicle, regardless of fault, is supposed to carry insurance and notify their carrier immediately. And legally obliged as well to notify their state’s Department of Motor Vehicles, within a timeframe of just days. Having done that, presumably one of these big entities can initiate legal action. Further there are two tracks leading to swift disclosure—while the person at fault is obliged to notify even though it would clearly be against their interests, and subject to penalties if they do not, the victim is also both encouraged and obliged to notify these authorities, so it is futile for the one at fault to attempt to evade their responsibilities. Once one side has filed notice, the other’s agents will find out soon enough anyway.

So why is it reasonable to give anyone involved two years to decide that the courts should be involved?

Well, I can answer my own rhetorical question—very often, the consequences of what seemed originally to be a relatively minor incident become apparent only over a considerable lapse of time. Someone who thought they came out of a car accident unhurt might turn out to have sustained a hidden injury for instance. Thus it is reasonable to keep the window open.

All the more reason then to allow an employee, who probably doesn’t have a legal organization on retainer and ready to devote massive resources to follow up on their interests, time to discover evidence of systematic discrimination against them, discrimination which by its nature can be concealed from a mere employee by an organization that probably does have either its own legal staff or a contractual, ongoing relationship with a law firm.

Six months is mere peanuts compared to two years for a run-of-the-mill car accident.

Even with Ledbetter, our corporate masters are getting off pretty lightly.

Without it of course, under the absurd SCOTUS interpretation of the statue of limitations, anti-workplace discrimination laws were effectively a dead letter.

Which is obviously how people like PP liked it.

I’m having trouble finding the part of the law that limits lawsuits to 180 days after the initial discovery of discrimination

42 U.S.C. 2000e-5(e)(1), if I recall correctly.

Having read Jesse’s post and the above comments, the issue is now as clear as mud, and I’m a lawyer.  I don’t do discrimination work, though, so I haven’t read the Ledbetter case yet.  I gather SCOTUS decided the 180 day rule was a drop dead rule without escapes and the S/L ran from the date the cause of action accrued, that date being the act of discrimination.  If that’s the way the S/L was written in the prior law that’s not an unreasonable interpretation; undoubtedly it was a bit more complicated than that or the case would not have gone that far.  If that’s the way the old law was written I don’t blame SCOTUS, I would blame the dumbass legislators.  And it’s not a slam against SCOTUS to change the law to get it right.

180 days from the alleged original act of discrimination seems ridiculously short.  Putting in a discovery rule (to include “should have” discovered—does the new law include that?) makes it more sane, but to change the accrual rule to a new violation every paycheck is equally ridiculous and does extend the S/L for as long as the person stays employed there, actually 180 days beyond the end of employment.  It sounds from these posts that the new law does both.  Can anyone clarify?

BTW, it seems many are assuming that any claimant who files suit has been discriminated against by her employer.  Saying corporations have nothing to worry about as long as they don’t discriminate is like saying people concerned about 4th Amendment rights are worried about nothing—as long as they’re not doing anything illegal they shouldn’t care if the police search their house or apartment.

One thing critics of the new statute seem to forget, is that the new statute reflects the law as it was for about 30 years or so, before the Supreme Court messed it up with Ledbetter.  It was working jus fine before 5 votes on the Supreme Court decisded to “fix” it.

I’m a lawyer.  I don’t do discrimination work, though, so I haven’t read the Ledbetter case yet.  I gather SCOTUS decided the 180 day rule was a drop dead rule without escapes and the S/L ran from the date the cause of action accrued

Well, I dabble in discrimination law on occasion.  What we are talking about here is, in part, an accrual rule—the cause of action continues to accrue as long as the discrimination continues.

The employer worrried about being sued as a very simple remedy—stop discriminating!  Then the cause of action stops accruing and the 180-period begins to run.

In light of the horrible economic tragedy that will result from enforcement of this unfair law, which requires companies to not discriminate against their employees via wages, there must be some way our Congress can make discrimination like this retroactively legal, like they did with our brave phone companies…

...sorry!  I forgot that Dick “If The Vice President Does it it’s Not Illegal” Cheney is no longer <strike>VPOTUS</strike> in control.  Never mind…

In which case I guess the point would be to make employers responsible for reviewing their compensation distribution to ensure that it’s not discriminatory.

What’s the problem with that?  I think major corporations HR depts should look at their compensation policy.  If they find other women, like Ledbetter, or minorities, who have been employed for years and are making noticeably less money than their white, male counterparts, they absolutely need to review their records.  If the review shows that the employee has had good performance evaluations, but has just been offered lower raises and denied promotions for no ascertainable reason, they need to contact these employees and offer to settle now.

Employers responsible for not discriminating?  Yep.  That’s exactly where the responsibility belongs.

And it’s not 180 days from the time the discrimination is discovered.  It’s 180 days from the last paycheck, and if that paycheck is based off of years of discriminatory “raises” and base salary, then it is part of a chain.  Every paycheck counts as further discrimination, unless someone changes jobs or otherwise is brought into line with compensation.  Then, the employer only has to hide that previous discrimination for 180 days, and they will have gotten away with it.

The burden should not be on the victim.  I don’t find it surprising that Lily Ledbetter was treated like a rape victim at all.  Women have to jump through all sorts of hoops to get justice.

The burden should be on the criminal, i.e., the company that is discriminating.  This new law makes sure that’s the case.

Knowing folks who work in discrimination law, very very few people who could file suits do so and even fewer win.  The historical problem has not been an overabundance of lawsuits but a lack of them.  Proving discrimination is difficult and time consuming.  The logic of extending of the S/L with paycheck is that the employer is continuing to benefit from the discrimination every time they underpay an employee.  In the case of Ledbetter, the discrimination began immediately when they hired her but was compounded with each paycheck as she was paid less, as her raises were necessarily smaller, and the company continued to benefit by getting her labor at a lower cost.

Here’s where the fourth amendment comparison breaks down.  If my rights as an individual are violated, I have to sue the government with vastly superior resources.  If I accuse a corporation, they have vastly superior resources with which to combat my claim.

Republicans certain know how certain parts of the legal system work—they’re prompt enough at litigating elections, or at suing the government for “takings” every time their god-given right to pollute or subject employees to unconscionable risk is reined it.

In a way, the new law still lets employers off too easily. They can underpay women or others as much as they want, as long as they bring employees’ wages to parity six months before they file suit (because then the act of discrimination isn’t ongoing). So if you hear someone is making inquiries about relative wages, an immediate raise will pretty much quell all your damages.

“If they find other women, like Ledbetter, or minorities, who have been employed for years and are making noticeably less money than their white, male counterparts, they absolutely need to review their records. “

What about bonuses or other compensations like maternity leave or other such family leave? Here is the thing a lot of companies only offer family leave to women and justify the paying less since the woman gets paid for not being there and not losing their job while a man wouldn’t get any pay and lose the job.

Historically men have been giving no time off if their wife gave birth they were required and expected to work hence being considered more valuable to the company hence being paid more but getting less benefits.

Middleage Liberal: It’s not every paycheck the employee receives, ever, until they leave the firm, plus six months. It’s every discriminatory paycheck the employee receives, plus six months. All the companies have to do to protect themselves against lawsuits is not pay women less than men for the same work. Fix the problem, and the statute of limitations stops running. Don’t fix it, and it keeps going, because you’re still discriminating. How is that onerous?

Funny, tootired, it seems to me that FMLA applies to women and men equally.

All the companies have to do to protect themselves against lawsuits is not pay women less than men for the same work. Fix the problem, and the statute of limitations stops running.

  You’re assuming that all instances of disparate pay are from sexual discrimination.  If there are other reasons for it in a particular case there is nothing to fix and the non-discriminatory disparate pay would continue.  Being sued doesn’t mean the company is guilty and being innocent doesn’t mean the suits are of no consequence or expense.  Statutes of limitation have legitimate reasons to exist.  The one fixed was particularly onerous to claimants.  The complaining corporations do have a point with the fix though.

Uh, MedievalLiberal:

No. The law says that you have to pay people the same for doing the same work. Period. It doesn’t say you have to pay people the same for doing different work. So you’re clutching pearls about a problem that isn’t real. Heck, people could even sue for disparate pay under the old rules, causing oodles of expense to a company. But somehow it only seems like a problem when people who have actually been discriminated against have a chance of winning.

No, this registering system ROCKS!

We get better trolls!

But, if the companies aren’t doing anything wrong then they have nothing to fear, right?  That’s the mantra I was given as I watched the 4th Amendment burn over the last 7 years.

Being subject to a lawsuit != being subject to illegal search and seizure, and fuck you for suggesting it.  Yes, companies sometimes have to suffer being subject to frivolous lawsuits or lawsuits that have no bearing in fact.  That’s a cost of doing business.  And that’s not an excuse for letting companies get away with discriminating against their employees.  Employees’ only recourse is a lawsuit.  You and MiddleAgedLiberal can seriously go fuck yourselves for very clearly stating that women and minorities have no right to equal pay for equal work.

There’s something almost ridiculously scary about people who make laws not even understanding how people are sued.

They understand perfectly. They are just lying to rile up their deranged fuckwit electoral base.

You’re assuming that all instances of disparate pay are from sexual discrimination.

No, that determination is made on the merits of the plaintiff’s case. This Act provides a more equitable framework for cases in which some manner of discrimination is cited as the cause of action, recognises the realities of the situation (e.g. corporations wisely tend to conceal discriminatory practises as long as possible), and sets the clock ticking from the last disparate paycheque that’s alleged to be discriminatory, rather than from the first such paycheque.

If there are other reasons for it in a particular case there is nothing to fix and the non-discriminatory disparate pay would continue.

That’s for the defendant to demonstrate, and providing those “other reasons” is one of the main reasons that corporate Human Resources departments exist.

You and MiddleAgedLiberal can seriously go fuck yourselves for very clearly stating that women and minorities have no right to equal pay for equal work.—keshmeshi

I said no such thing.  I said in both posts that 180 days from the original act of discrimination was ridiculously short.  I then said that the opponents had a point by complaining that an accrual rule going from each paycheck was an indefinite extension of the statute of limitations. So fuck yourself right back for intentionally misreading what I wrote.

OK, I spent over an hour reading about this and have a better understanding.  I also have a reinforced view that reporting of legal issues in mainstream media is generally pretty poor. 

Those of you who know the Ledbetter case history already know this but for the rest who are just starting to read about it, here’s what I learned.  EEOC had been using the paycheck accrual analysis (each paycheck is discriminatory even if the the prohibited act occurred many years before) for awhile.  Ledbetter won her case at trial and the Supremes (5-4) decided the act required the claim be filed 180 days after the discriminatory act occurred, thus rejecting the last paycheck accrual approach. 

The Ledbetter act apparently (sorry, I didn’t find the whole thing to read) simply explicitly enacts the paycheck accrual rule.  The discovery rule I and others discussed (the statute of limitations should run 180 days—or whatever time period you pick—from the date the employee discovered or should have discovered the discriminatory act) was actually proposed by some Republicans.  Kay Bailey Hutchinson was credited with it but it was rejected.  So, it is not discovery of the discrimination after the last paycheck, but 180 days from the last discriminatory paycheck, irrespective of any intent or lack of intent to discriminate when that last paycheck was issued and irrespective of when the employee discovers the discrimination. 

Muddy water cleared for me, at least on that legislation. 

There was discussion of Ledbetter’s possible claims under the Equal Pay Act which was said not to have the draconian S/L short period but also has some significant limitations on the look back period and on punitive damages.  Ledbetter had abandoned that claim early on in the litigation.  But that was a whole ‘nother can of worms to sort out, so I left it.

What about bonuses or other compensations like maternity leave or other such family leave?

If her bonuses were lower than her male contemporaries, they can be part of her suit.

Oh…not what you meant? 

If she made her number as a sales rep and her bonus was the same as any sales rep who made the number?  No problem for the corporation.  If she wasn’t in sales, and her bonus was based on a percentage of her salary, and that salary was demonstrably lowered by discriminatory practices?  Those bonuses should arguably be considered part of the suit.  If bonuses were based on annual reviews, and despite stellar reviews her bonuses were lower or negligible compared to male counterparts who had reviews equal or less than hers?  Definitely discriminatory.

And as above, FMLA is law and applies equally to men and women.  Companies can toss it out if they like; they’ll just be engaging in illegal labor practices, and therefore subject to legal action.

Sure would be simpler to treat everybody as a human being with the same rights.  Such a shame this administration expects the people responsible for the discrimination to pony up instead of putting all the burden on the victims.

keshmeshi, you misunderstood the intent of my post.  Please recalibrate your irony detection device. 

My note was an attempt at humor given the irony of having our civil rights eroded, the freeper reaction to which being that only criminals need worry, and attempting to juxtapose their defense of that erosion with a set of events for which only criminal entities need worry.  Only this time the plebes aren’t being lined up against the wall.  Get it?  The conflation is a bit of a stretch, but the point was to mock the defense, not the acts.

Don’t mean to piss on your righteous indignation party, but I never clearly stated anything but wholehearted support for Ledbetter, and fuck you for suggesting otherwise.

Apropos of the image up top:

http://www.flickr.com/photos/earthdog/517384118/

Yes, there are Phoenix Wright cosplayers!

What I can’t understand is how people can’t realize that some laws create incentives to do better. Don’t want your employees to sue you? Treat them well! Pay them fairly! Otherwise, they might become *your* competition tomorrow. The opposite is what—laziness? A willingness to burn through everyone in town?

What about bonuses or other compensations like maternity leave or other such family leave? Here is the thing a lot of companies only offer family leave to women and justify the paying less since the woman gets paid for not being there and not losing their job while a man wouldn’t get any pay and lose the job.

Wha???  You’re saying that because some female employees *could* get pregnant and take advantage of maternity leave, certain companies pay all women less money than their male counterparts?

Okay, no, that’s not legal.  And while some companies may offer a longer maternity leave than paternity leave, this sounds an awful lot like WHAT ABOUT TEH MENZ????

As the number of men who can give birth increases, I’ll be happy to support longer paternity leave.  Until then, I’ll stick with FMLA and encouraging companies to provide a general PAID “family leave” which would allow any employee to take scheduled time off for family events, regardless of whether those events were to care for a sick parent, or a newborn child, etc.

Mnemosyne said: You fail at reading comprehension.  The party who was discriminated against has 180 days to sue from the time that they discover the discrimination.  Once that 180 days is up, the window closes.

It is you who has failed. They have 180 days from every check that is disparate, which means they can collect the checks for the entire period they work there, say nothing, make no complaints, then 6 months after they quit file suit. It should be that htey have 6 months from when they discover the discrimination. That would be a reasonable time. As of right now, it is virtually unlimited.

What you—and the Supreme Court—argued was that every employee should automatically file a lawsuit against their employer within 6 months of being hired just in case they’re being discriminated against, because if you don’t file within 6 months of it happening, you’re shit out of luck.

That doesn’t even make sense.

Amanda wrote: Pigs like PrivatePigg are actually seeking ways to pay women less for equal work.

Yes, preferring a reasonable statute of limitations means I want to pay women less. What a brilliant intellect you have. I’ve commented on all of two posts and you’ve managed two unbelievably childish responses, replete with name-calling and presumptions that could not possibly be derived from the little time I have spent here. Grow up. My wife was discriminated against when she was hired for being from the Middle East. I still think the statute of limitations that is, in effect, unlimited is too long.

MiddleAgedLiberal seems to have it right. He was pretty calm and even-handed and merely explained his position and his thoughts, and was promptly told to fuck off. Unbelievable.

PP, many people don’t understand or don’t agree with the need to have statutes of limitations at all.  S/L’s can bar legitimate claims.  For people who are purists and are outraged at a particular injustice, anything than limits redress for that injustice is outrageous and shouldn’t exist.  The fact that it is more difficult to find the truth about past conduct the longer that conduct fades into the past and therefore S/L’s have a legitimate policy function in law is irrelevant to them. 

Ledbetter’s case was the perfect case to demonstrate the unfairness of the short S/L.  She showed illegal discrimination which had significant economic effect on her, she just never discovered the discriminatory decision until long after it was made—long after the S/L, read literally, expired.  A similar injustice in the law of S/L’s existed a long time in a type of medical malpractice claims.  Where foreign objects are left inside patients (needles, gauze sponges) they can sometimes remain undiscovered for many years, after the S/L ran from the time of the operation.  Most if not all states rectified that injustice by enacting statutes which say the cause of action for those cases doesn’t accrue, and the S/L period doesn’t begin to run, until the existence of the foreign object inside them is or should have been discovered. 

I don’t think my asking questions or arguing in favor of a discovery rule to address the bad S/L problem makes me a troll, but sometimes taking a position contrary to others makes them think I am.  So be it, he/she is just another a-hole on the internet, just like me.  It is disappointing to see an author of the site blast someone with as little evidence as Amanda did to you, but so it goes.

They have 180 days from every check that is disparate, which means they can collect the checks for the entire period they work there, say nothing, make no complaints, then 6 months after they quit file suit.

Oh goody! You mean I could work at a company that’s discriminating against me and ripping me off, and collect substandard and unfair paychecks for as long as I like? You mean it? Wow, it’s like my birthday or something!

Seriously. Who exactly is taking advantage of WHOM in your scenario? And that would change based on the length of discriminatory employment, why, exactly?