Smear Watch Smear Swatch

by John Holbo on August 27, 2008

Ramesh Ponnuru:

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. It’s an attempt to solve a non-problem. There will be costs associated with the legislation, in the form of lawsuits. And there will be no significant benefits. This does indeed seem to be the position, at least at the Corner. Reading up and down:

Goldberg on Ledbetter: “Wow, she was even worse than Sebelius. Tootsie with a southern accent. I burst into laughter when they started playing “I’m so excited” after she finished.”

I suppose the point is supposed to be that she is a lousy speaker. Well, I didn’t see her. But it’s pretty unusual for merely flat, lame delivery to be laugh-out-loud funny, unless used as a vehicle for laughable content. So I take it Goldberg finds nigh-inherently laughable the very notion that equality for women is a subject to get worked up about.

Jay Nordlinger (not on Ledbetter but on the issue of equality for women and equal pay for women, I take it): “Did Margaret Thatcher ever go on and on about how she was a woman? Or kvetch about glass ceilings? Did Indira Gandhi? Did Golda Meir? Didn’t they all just get on with it? I thought that Mrs. Clinton’s stress on her sex was unseemly — made her seem kind of affirmative-actiony, rather than a person who stands on her own two feet.”

Since ‘getting on with it’ will, by hypothesis, not involve complaining about inequality, or seeking redress, presumably the assumption is that unequal pay just doesn’t matter much. Why else would it be such an insignificant problem that even talking about it is policy overkill?

To conclude this episode of Smear Watch Smear Watch, ‘will Ponnuru accuse his Corner colleagues of smearing themselves?’ Only time will tell.

Or rather, since we know the answer is ‘no’, there is a semi-serious point to be made here. Which Yglesias made a few days ago: namely, saying something is ‘politically correct’ (affirmitive action-y) is often a strange sort of code for saying ‘correct’; ergo, a means of saying ‘I know what I want is wrong, nevertheless I am right to want this wrong thing,’ which is not really a sensible thing to say. As in ‘I know it’s politically incorrect not to care about women’s equality, nevertheless I wish they’d shut up about it.’ Somehow this is supposed to express a shrewd aloofness, a laziness about faddish concerns that bespeaks deeper earnestness about what really matters. But, when the same people (give or take) feel ‘smeared’ if you just say ‘so you think inequality for women is ok?’ … well, this gives the game away. To put it another way, it’s interesting how ‘politically incorrect’, which seems to express adherence to a philosophical alternative to liberalism, in fact does not. It’s just liberalism with a guilty conscience, coupled with resentfulness about this very fact.

Ponnuru may well say that he, personally, thinks inequality is ‘not ok’, i.e. is a more serious issue. But this isn’t enough to get him off the hook for smearing Clinton as a smearer. Hillary Clinton just pointed out to her listeners that McCain thinks like Goldberg and Nordlinger. And this seems like a good reason not to vote for him. Can this really be a smear, from a conservative perspective?

Goldberg and Nordlinger might say their flip dismissiveness belies a more complex attitude: the Lily Ledbetter Act, for example, would surely be a huge giveaway to trial lawyers, hence is self-defeating in some cost-benefit sense. In general, all legal attempts to redress concerns about inequality will boomerang, ending up hurting everyone (including women) more than they help. This isn’t plausible in a policy sense. More to the present point, it isn’t plausible the likes of Goldberg and Nordlinger really think anything of the sort. Because if this were really what they thought – namely, there is a thing that it is reasonable to want but, alas, that cannot be achieved for complex reasons to do with policy design, then that is an example of something that one would want to talk about at some length, not dismiss or laugh at.

This post has been unnecessarily long. But perhaps it is an important topic.

{ 93 comments }

1

Delicious Pundit 08.27.08 at 6:25 am

Nordlingler’s “unseemly” also gives the game away — as if political arguments have to be certified by the National Seemliness Bureau. Or, put another way, it’s like the attitude is, “I know she’s for affirmative action, but does she have to get all up in my face about it? Maybe I don’t feel like defending my preference for unequal pay. Not cool, Hillary.”

2

Harl Delos 08.27.08 at 7:25 am

The problem with “equal pay for equal work” is that found by SCOTUS in Brown v. Board of Education. Separate but equal is never equal.

Employers should hire the individuals that give “more bang for the buck”. Paying more tends to result in less employee turnover, which can be a significant competitive advantage, given that a highly-compensated employee that does excellent work consistantly, with little waste and meeting timetables, is quite often less expensive to employ than a series of employees that don’t stick around very long.

I know of a manufacturing plant owned by a quirky fellow, who paid all his workers a little over minimum wage – but each year at Christmas time, he gave each of them a bonus equalling $100 times his number of months of service. That way, workers knew that if they stuck around, they’d get a $1200 raise every year. Merit pay, you see, and either you merit getting that bonus, or you don’t merit keeping your job.

The guy had a heart attack and died. His successors felt it important to raise the base pay, because new employees couldn’t afford to come work for the plant. Then, of course, they couldn’t afford to keep the bonus going, and all the long-time employees left, and the place ended up closing their doors.

There are a lot of jerks who are employers. If they screw over their employees, they end up going out of business. The Lily Ledbetter lawsuit was against Goodyear. They haven’t done too well, nor has the entire domestic tire industry. Goodyear was the only major American tire company not to be swallowed up – Goldsmith tried a hostile takeover in 1986, but failed – and their market share dropped from 24% in 1970 to 17% in 1993.

And the only effective defense against working for jerks is to fire them and hire another boss. Unfair discrimination in hiring and paying is a bad strategy; you pay more for your workforce, and get less value for your money. If someone wants to be stupid, we ought to let market forces teach them the error of their ways, which would have the effect of rewarding nice guys as well.

But if you’re going to have anti-discrimination laws, they ought to be as reasonably effective as you can make them. The Lily Ledbetter law says that every instance of paying someone is another instance of discriminatory treatment, if indeed the treatment is discriminatory. It’s pretty hard to prove discrimination, so if someone does, it’s hardly fair to bar their claim because they started work more than six months prior.

3

abb1 08.27.08 at 8:31 am

Because if this were really what they thought – namely, there is a thing that it is reasonable to want but, alas, that cannot be achieved for complex reasons to do with policy design, then that is an example of something that one would want to talk about at some length, not dismiss or laugh at.

Hmm, that doesn’t sound very convincing. People often do dismiss what they perceive as idealistic blubber. You know, in “the poor will always be with us” sort of way.

4

John Holbo 08.27.08 at 8:40 am

Sorry, are you saying that what I’m saying is not convincing, abb1, or that this hypothetical thing they might say is not convincing? If the latter: I’m not convinced.

5

Z 08.27.08 at 9:02 am

Still abb1, “the poor will always be with us” sounds a bit like “I know what I’m doing is screwing the poor but, hey, they’ll always be with thus right” so I smell some guilt at the inadequate answer.

Anyway, I’ll note that the idea one can answer “Doing bad things to A is bad” by “Of course doing bad things to A is bad, but how dare you say that because we are doing bad things to A, we are doing bad things? Isn’t it dreadful how liberals are obsessed with A? I wonder if they are all A, somehow. What, you are outraged that I suggested you were A, I thought there were nothing wrong with being A.” (A could be Muslims, Gays, Atheists, University professors, what have you) is again constitutive of quantum ironics, à la Ann Coulter. The fundamental principle underlying it, and also whatever is “politically incorrect”, seems to be a disregard of the principle of independence of irrelevant alternatives. So from “Torturing is bad” you cannot conclude that “Torturing a muslim foreigner is bad” and from “Giving unequal pay for equal work is bad” you cannot conclude that “Giving unequal pay for equal work to a woman is bad”. Thinking you can do so only shows how obsessed you are with muslims and women.

6

Hidari 08.27.08 at 9:03 am

Important backstory, I feel.

‘Today, the United States ranks 22nd among the 30 developed nations in its proportion of female federal lawmakers. The proportion of female state legislators has been stuck in the low 20 percent range for 15 years; women’s share of state elective executive offices has fallen consistently since 2000, and is now under 25 percent. The American political pipeline is 86 percent male.

Women’s real annual earnings have fallen for the last four years. Progress in narrowing the wage gap between men and women has slowed considerably since 1990, yet last year the Supreme Court established onerous restrictions on women’s ability to sue for pay discrimination. The salaries of women in managerial positions are on average lower today than in 1983.

Women’s numbers are stalled or falling in fields ranging from executive management to journalism, from computer science to the directing of major motion pictures. The 20 top occupations of women last year were the same as half a century ago: secretary, nurse, grade school teacher, sales clerk, maid, hairdresser, cook and so on. And just as Congress cut funds in 1929 for maternity education, it recently slashed child support enforcement by 20 percent, a decision expected to leave billions of dollars owed to mothers and their children uncollected.

Again, male politicians and pundits indulge in outbursts of “new masculinist” misogyny…..’

http://www.nytimes.com/2008/08/26/opinion/26faludi.html?_r=1&hp=&oref=slogin&pagewanted=print

7

abb1 08.27.08 at 9:15 am

I’m saying that what you’re saying is not very convincing, if the proposed law (of which I know nothing) can indeed be percieved as unpractical, unrealistic, useless feel-good legislation.

8

John Holbo 08.27.08 at 9:24 am

Yes, but why would it be perceived as useless, feel-good legislation?

9

David Carlton 08.27.08 at 9:41 am

“Wow, she was even worse than Sebelius. Tootsie with a southern accent. I burst into laughter when they started playing “I’m so excited” after she finished.”

I suppose the point is supposed to be that she is a lousy speaker. So I take it Goldberg finds nigh-inherently laughable the very notion that equality for women is a subject to get worked up about.

I did see her; she spoke like a working-class southern white woman with no experience at public speaking outside perhaps her church. This sort of mockery of one of those good, salt-of-the-earth common folk could only come from some arugula-eating, latte-sipping elitist–right? Mockery of the weak is just digusting.

10

abb1 08.27.08 at 10:21 am

I don’t know, but if one believes that some (unfortunate) things will never disappear completely – the poor will always be with us, the women/minorities will always be discriminated against to some extent no matter what you do – and what we have now is the best equilibrium possible, or perhaps it’s even bent it too far on the legislative side of things – then this attitude kinda seems justified. In the “yes, it’s unfair, but who said life is supposed to be fair?” sort of way.

11

John Holbo 08.27.08 at 10:25 am

“what we have now is the best equilibrium possible”

Yes, but why would this be so obvious as not even to bear arguing?

And the ‘yeah, life is unfair’ argument just misses. The point of the Lily Ledbetter Act is not to heal all the wounds of the world. So the fact that it will obviously fail to heal the wounds of the world, in some utopian fashion, really fails to graduate out of the ‘not even wrong’ category, as responses go.

12

Ano 08.27.08 at 10:32 am

In general, all legal attempts to redress concerns about inequality will boomerang, ending up hurting everyone (including women) more than they help. This isn’t plausible in a policy sense.

Okay, let’s forget Goldberg, Nordlinger, and the like and talk about what really matters: is there a decent consequentialist argument against Ledbetter?

The most convincing one I’m aware of isn’t about the trial lawyers, it’s about labor market supply and demand. It goes like this:
– In some sense and, women (as an identifiable group for the purposes of statistical discrimination) are not doing equal work because of established patterns of workforce participation and child-rearing. (There are self-reinforcing feedback loops here: lower pay makes the choice to take time off for the kids an easier decision.) Evidence: the market pays women less for apparently equal work, even when women are doing the hiring and pay decisions.
– If that is true, then legislating equal pay for apparently equal work will be tantamount to a price control, setting the price of women’s labor higher than businesses want to pay.
– Theoretically, price controls of this sort will suppress employment of women: some women, through no fault of their own, will not be able to find a suitable job as a result of this legislation. (Leaving aside: is this better or worse than some women, through no fault of their own, get lower pay than they should.)
– Does this theory map onto the real world? The evidence is mixed for another price control: the minimum wage (e.g. Card and Krueger find little evidence of bad effects of a hike in the minimum wage). For price controls of gasoline under Nixon, the textbooks were right: shortages.

So: leaving aside whether Goldberg et al are sincere, improving their argument (and improving mine, as you are no doubt capable of doing), is opposition to Ledbetter supportable? Is there no consequentialist argument that outweighs the principle here?

13

abb1 08.27.08 at 10:50 am

Yes, but why would this be so obvious as not even to bear arguing?

Why, this NRO-corner place is a group of like-minded individuals. The idea that treating social ills by legislation is stupid and counterproductive is self-evident to them. Why wouldn’t it be – that’s one of the basic axioms of their ideology. Still, it doesn’t necessarily mean they approve of discrimination.

14

Jacob T. Levy 08.27.08 at 11:08 am

I have enough accumulated annoyance at “comparable worth” and 71-cent talking points and much else besides that I winced at that HRC line. Most legislation that would be defended under the “equal pay for equal work” slogan would be legislation that would have made the line a smear.

But the LLA is a procedural fix to allow suits for discrimination that’s *already unlawful*. On one hand, it’s got very little to do with the supposed promised land that will end the days of the supposed 71 cents. On the other hand, there’s something close to no legitimate reason to oppose it (and I’m Mikey from the Life commercial– I oppose basically *all* federal legislation). And since it’s a procedural remedy that kicks in if there *hasn’t* been equal pay for equal work, John’s analysis is just right, and Ponnuru’s off-base.

15

Jacob T. Levy 08.27.08 at 11:09 am

… and so Ano above @ 10:32 is arguing against different legislation from what’s at stake here.

16

Slocum 08.27.08 at 11:52 am

I would say suggest two reasons for resisting ‘Lily Ledbetter’ style legislation from a libertarian perspective. First, because it is the first step toward ‘comparable worth’ legislation — which inherently involves the government in classifying occupations and deciding which are of equal value and should demand equal pay. For a libertarian, there are few worse ideas.

Next, the problem is that–should we consider any discrepancy between a company’s male and female employees as legal evidence of discrimination? Even if it is the case that the female employees are more likely to leave the labor force for years, or to work part time? Even if they are less likely to pursue advancement opportunities aggressively, agree to transfers for advancement, or seek out jobs with competing firms for greater pay?

Men and women are obviously different for biological and social reasons that are inextricably intertwined (and probably mutually reinforcing). Over their lifetimes, they tend to approach their careers differently. Females judge potential partners much more heavily on earning ability and ambition than men do (which, at least in other contexts, CTers acknowledge openly). So men feel more pressure for career advancement than women and have more to gain from it, will make more sacrifices to achieve it, and have more to lose from failure to advance. A lot more. (I have a friend — a women in her late 30s — who’s looking for a partner. A liberal, professional woman — I’m sure she’ll be voting Obama. She passed on a second date with a guy who she liked and who enjoyed the same things she did–only because, by her own account, he worked at Home Depot and didn’t have plans for anything more. That’s the kind of pressure that men face, but women don’t).

Because of these differences, it is reasonable to expect that even scrupulously fair employer who evaluated employees strictly on an blind, scientifically accurate assessment of merit might well end up paying male employees more on average. If any discrepancy constitutes legal evidence of discrimination, HR departments will be forced to calculate average pay by sex and employers will enforce equal averages to avoid lawsuits. Which would be chilling and unfair to the male employees.

Now maybe you think that if companies were forced to equalize male and female pay exactly despite the differences in work interruptions, part-time work, willingness to make sacrifices for advancement & etc that would be a good thing anyway because it would be socially just to compensate women for the time they’re taking away to care for children or because forcing equal pay would somehow tend to ultimately break down the differences in career attitudes and approaches between men and women, or something along those lines. But that would be an attempt at social engineering not a redress of discrimination.

17

Jacob T. Levy 08.27.08 at 12:22 pm

But the legislation doesn’t affect the preexisting legal standards for what constitutes sex discrimination in wages. *That* law is already on the books. It only affects when the discrimination is said to have taken place chronologically for purposes of determining the dates when a lawsuit can be filed.

18

Mrs Tilton 08.27.08 at 12:32 pm

This post has been unnecessarily long

Long? By Holbonic standards, it’s practically a haiku.

19

John Holbo 08.27.08 at 12:56 pm

Thanks for backing me up, Jacob.

Slocum: “First, because it is the first step toward ‘comparable worth’ legislation—which inherently involves the government in classifying occupations and deciding which are of equal value and should demand equal pay. For a libertarian, there are few worse ideas.”

Let’s even set aside Jacob’s points about what the legislation in question actually does: yours is not an argument against anything I wrote in the post. (Maybe you see this, but let’s be clear about it.) The libertarian argument is a straight route to ‘it’s ok for women not to receive equal pay for equal work’. You are saying that this result is 1) ethically acceptable; 2) practically unfixable, in the event that 1) is denied. It is quite likely that this is McCain’s view (to the extent that I can credit him with mustering interest in domestic policy.) So for Hillary Clinton to attribute to him what is probably his actual view, merely putting the emphasis on plain implications of the view that are likely to sway her audience against him, is hardly a smear. It’s barely even spin.

20

abb1 08.27.08 at 1:15 pm

It’s all hinges on your definition of the word “OK”.

As in: ‘do you need a band-aid for that?’ ‘No, it’s ok.’

‘No, it’s ok – a band-aid won’t help’ or ‘No, it’s ok – it’s fine, it’s acceptable as it is’? These are two different OKs. She, of course, makes it sound as he believes it’s acceptable, while there is a chance he just believes it won’t help.

Although now, as I understand better what the proposed law is about, it really does seem rather unconscionable to oppose it.

21

rea 08.27.08 at 1:26 pm

could we consider any discrepancy between a company’s male and female employees as legal evidence of discrimination?

Well, of course, as a matter of common sense, it’s evidence of discrimination–just not necessarily conclusive evidence.

Even if it is the case that the female employees are more likely to leave the labor force for years, or to work part time? Even if they are less likely to pursue advancement opportunities aggressively, agree to transfers for advancement, or seek out jobs with competing firms for greater pay?

See, there’s this obscure legal concept called “rebuttal evidence”. We let both sides present their evidence, argue about what it means, and then let the jury decide . . .

22

John Holbo 08.27.08 at 1:31 pm

I admit ‘ok’ can mean different things. We aren’t actually sure of anything more than that, for some value of ‘ok’, McCain is ok with it. McCain can no doubt explain exactly what it is that makes Clinton’s sentence true, if it bothers him that people are left swinging from the semantic hinge of ‘ok’.

23

Adam Kotsko 08.27.08 at 2:00 pm

John, I’m worried about you. Maybe you need to take a break from reading The Corner for a couple weeks.

24

John Holbo 08.27.08 at 2:13 pm

I can quit any time I want.

25

Grand Moff Texan 08.27.08 at 2:24 pm

I would say suggest two reasons for resisting ‘Lily Ledbetter’ style legislation from a libertarian perspective. First, because it is the first step toward ‘comparable worth’ legislation—which inherently involves the government in classifying occupations and deciding which are of equal value and should demand equal pay.

I would say suggest [sic] that you read the legislation.
.

26

Malaclypse 08.27.08 at 3:20 pm

I know of a manufacturing plant owned by a quirky fellow, who paid all his workers a little over minimum wage – but each year at Christmas time, he gave each of them a bonus equalling $100 times his number of months of service. That way, workers knew that if they stuck around, they’d get a $1200 raise every year. Merit pay, you see, and either you merit getting that bonus, or you don’t merit keeping your job.

$1,200 a year is the same as 58 cents an hour, except wages are guaranteed, while bonuses are not. In real terms, he was probably paying most people less and less each year.

27

someguy 08.27.08 at 3:22 pm

Abb1,

According to the legislation, unlawful conduct occurs when: “(1) a discriminatory compensation decision or other practice is adopted; (2) an individual becomes subject to the decision or practice; or (3) an individual is affected by application of the decision or practice, including each time compensation is paid.”

I cannot get the text of legislation. I am getting a link error. So I am basing this on the above summary.

Every time your evaluated you don’t get your base pay reset.

That means that a discriminatory act from 40 years ago could impact your pay today.

It seems to me reasonable people could disagree about the desirability of such a law.

28

Fats Durston 08.27.08 at 3:39 pm

I can’t believe everyone’s ignoring the biggest outrage here:

Goldberg on Ledbetter: “Wow, she was even worse than Sebelius. Tootsie with a southern accent.

Tootsie had a Southern accent, moron.

29

rea 08.27.08 at 3:44 pm

That means that a discriminatory act from 40 years ago could impact your pay today.

It seems to me reasonable people could disagree about the desirability of such a law.

“Someguy” seems to think that if an employer has been discriminating for 40 years, it ought to be able to continue without penalty. At least, he seems to think reasonable people can disagree over the issue, which I think is a position no reasonable person would take.

30

Slocum 08.27.08 at 3:49 pm

The libertarian argument is a straight route to ‘it’s ok for women not to receive equal pay for equal work’.

No, the libertarian argument is that is a big problem to get the government into the business of judging what constitutes ‘equal work’. Period. Trying to compare across job classifications and judge what job have comparable value and should receive equal compensation is a big problem for libertarians (e.g. ‘comparable worth’). But even within a given job classification, there’s obviously no guarantee that any two employees are doing work of equal value.

One can be strongly in favor, in the abstract, of people receiving pay that corresponds to the value of their work — but also believe that there is no absolute fixed standard of ‘value’, that the employment marketplace will provide the best practical approximation of that (though obviously a highly imperfect approximation), and that government interventions will make things worse.

But the legislation doesn’t affect the preexisting legal standards for what constitutes sex discrimination in wages. That law is already on the books.

Yes, I understand that. But the whether or not there is any kind of statute of limitations involved will, nevertheless, have a major difference in the impact. Which is why this matters.

See, there’s this obscure legal concept called “rebuttal evidence”. We let both sides present their evidence, argue about what it means, and then let the jury decide . . .

The greater the exposure, the more that corporate HR and legal departments will live in fear even of having to defend such suits, and the more they will tend to adopt measures that will try to protect themselves against even having to defend such a suit. In other words, regulation by threat of class-action lawsuit. You may think that’s either a bug or a feature, but I think it’s a bug.

31

Michael Drake 08.27.08 at 3:54 pm

“Did Margaret Thatcher ever go on and on about how she was a woman? Or kvetch about glass ceilings? Did Indira Gandhi? Did Golda Meir?”

Setting aside Nordlinger’s overstatement (did you catch all that “kvetching”? Yeah, me neither), knowing whether those analogies are even relevant would require historical knowledge of (among other things) gender-political dynamics in Israel ca. 1969 and in GB ca. 1979. Such is above my pay grade. But given that Nordlinger tosses these analogies off as if they were obviously apposite, we can conclude it’s also above his.

32

Michael Drake 08.27.08 at 3:55 pm

(Oh, and what Fats said.)

33

someguy 08.27.08 at 4:21 pm

John,

It was insulting because it was meant to insult. That is how insults work.

Rea,

I think that discrimination should come with something like a statute of limitations or repose. I think it is nonsensical to say that an act of discrimination from 40 years in the past constitutes recent or current discrimination.

The Lily Ledbetter Act has the potential to remove any such limitation.

34

bianca steele 08.27.08 at 4:26 pm

I’d guess Ponnuru (or Douthat, or Sullivan) might say, “Of course, I feel it’s not okay, it‘s quite bad. I just don’t think we ought to think it’s possible to avoid bad things. It’s in God’s hands.” He’s free to feel that way, after all. But it’s interesting that you rarely hear anybody actually say that. In fact, very few religious leaders would say that. (Okay, there’s the minister in, I think, Ghosts — but he’s a fictional character invented by a man who was vehemently anti-religious and thus generally considered to be biased.) Yet people like Ponnuru appear to feel it’s a belief they’re required to hold as a part of their religion. Or at least that’s what they say. Though as I said, they don’t say much if they can help it. After all, they wouldn’t be able to convince as many people if they claimed their position were religious, rather than rational. They too often just leave stuff out and expect their readers either to understand them perfectly or else to be charitable. Besides, most people who don’t want to be regulated don’t really care whether there’s an argument against regulation, much less whether the argument is good (plus, I’ve known a fair number of people who seem to consider “my friends don’t want to be regulated and say regulation is bad” to be a sufficient argument, of which I‘d consider “my dad always said that regulation is bad“ to be a subset).

On another point, I think Yglesias is a little too young to remember what “politically correct” still means for many people.

35

mpowell 08.27.08 at 4:26 pm

22: As you’ve been paying attention, John, I’m sure you’re well aware that McCain has no intention of ever explaining himself in a coherent manner. I’m sure if pushed further on the issue, the best we are likely to get is something along the lines of, “Since I was tortured while a captive in Vietnam, I came to appreciate the value of getting paid at all for honest labor.”

29: Slocum, if that’s the political argument that we were having, that would be one thing. But until the Republicans want to present that argument to the American people, I don’t think they can complain when Hillary accuses them of being okay with unequal pay for women for equal work.

36

Sebastian 08.27.08 at 4:27 pm

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.
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.

37

Sebastian 08.27.08 at 4:31 pm

“See, there’s this obscure legal concept called “rebuttal evidence”. We let both sides present their evidence, argue about what it means, and then let the jury decide . . .”

Which is one of the strong arguments for having some statute of limitations.

Suing over an alleged decision to discriminate made 20 years ago is going to be problematic. If there were legitimate workplace reasons to give someone a lower salary, it will be much more difficult to present evidence of such 20 years later when the people who worked around the plaintiff are dead, don’t remember, or are well beyond the reach of the company for the purposes of presenting evidence.

38

Thomas 08.27.08 at 4:42 pm

I’m worried about you John.

You quote Goldberg saying (about Ledbetter) “Wow, she was even worse than Sebelius. Tootsie with a southern accent. I burst into laughter when they started playing “I’m so excited” after she finished.” You “suppose the point is supposed to be that she is a lousy speaker” and say that “it’s pretty unusual for merely flat, lame delivery to be laugh-out-loud funny, unless used as a vehicle for laughable content. So I take it Goldberg finds nigh-inherently laughable the very notion that equality for women is a subject to get worked up about.” Really, you’re better than this. Do you need all jokes explained, or just some?

Imagine this: Friday morning John McCain annnounces Fred Thompson as his running mate, and they each give a short speech about re-building the Reagan coalition, and then, as they walk off the stage the campaign plays Rod Stewart’s “Forever Young.” Funny?

Your interpretation of Nordlinger’s comment is equally strained. Nordlinger is, it seems to me, quite obviously talking Clinton’s talk about the historical nature of her campaign. I, unlike Nordlinger, don’t see anything wrong with what Clinton said last night in that regard, but putting events in context isn’t, in this case, a policy dispute. There isn’t even a policy reference.

39

abb1 08.27.08 at 4:44 pm

Sebastian,
what’s wrong with counting every paycheck as a new act of discrimination? Seems perfectly logical to me. Ordinary robbery is a one-shot deal, in the Ledbetter’s case she is being robbed every month. And what about, say, extortion: once a store owner started paying the mob, should it become legal after a while?

Also, according to WaPo, the proposed bill would “prevent workers from collecting more than two years’ worth of back pay.”

40

Sebastian 08.27.08 at 5:11 pm

“what’s wrong with counting every paycheck as a new act of discrimination? “

Because it is perfectly possible that the choice of discrimination was made by a manager who is no longer with the company or is not currently the plaintiff’s manager, so each paycheck is not a new act of discrimination.

“Also, according to WaPo, the proposed bill would “prevent workers from collecting more than two years’ worth of back pay.” “

Plus punitive damages. Which is a whole ‘nother world of liability. Worrying about paying just 2 years of back pay wouldn’t have gotten that case to the Supreme Court.

41

LizardBreath 08.27.08 at 5:18 pm

Sebastian: Management is aware, on an ongoing basis, of its opinion of the quality of Ledbetter’s work. It is also aware, on an ongoing basis, of what she’s paid compared to other employees doing the same work. For each paycheck where they’re aware that she’s getting paid less than comparable employees, they’ve decided not to change that discriminatory fact. That decision, to leave her lower pay unchanged, to you can’t be a basis for liability?

42

geo 08.27.08 at 5:34 pm

it is perfectly possible that the choice of discrimination was made by a manager who is no longer with the company or is not currently the plaintiff’s manager, so each paycheck is not a new act of discrimination

I don’t follow, Sebastian. If the employee was discriminated against by a manager who is no longer with the company or is no longer that employee’s manager, and no restitution has been made, so that that manager’s discriminatory decision still determines that employee’s pay level, then why does it make sense to say that the employee is no longer being discriminated against?

43

someguy 08.27.08 at 5:49 pm

LizardBreath,

That mostly isn’t the way it works. Even if it was it wouldn’t fix the issue.

John and Alice are in the same payband. They get the same reviews.

John makes 20% more. Is that because Alice is bad negotiator? Is that because they are in the same pay band but John has some skill that is worth 20% more? Or is it because some jerk messed with Alice’s increases 15 years ago?

geo,

Because no one would currently be discriminating against Alice. The decision from 15 years ago might be impacting her today but no one would be currently discriminating against her.

44

Sebastian 08.27.08 at 5:58 pm

“Management is aware, on an ongoing basis, of its opinion of the quality of Ledbetter’s work. It is also aware, on an ongoing basis, of what she’s paid compared to other employees doing the same work. “

If early in my career I accept too low a wage for my job, management typically (I won’t say never, just typically) won’t correct for that on their own. They will barely notice it, and insofar as they do, they typically won’t correct it. Whatever balance of fairness that is in the grand scheme of the world, that isn’t sexual discrimination.

The same thing happens if you don’t get a promotion early on and it sets you back a year. That isn’t going to be reviewed 20 years later.

45

LizardBreath 08.27.08 at 6:04 pm

And yet a jury found in Ledbetter’s favor. Which suggests that there was at least some evidence that the pay discrepancy was something of which management was aware, and that it was motivated by sexual discrimination. If that evidence was available to the jury, it was available internally to management before she sued — claiming that they were simply unaware, as a matter of fact, of why she was making less money doesn’t make sense under these circumstances.

If (that is, I’m asking you to take this as a postulate) there was evidence that Goodyear was internally aware of the original basis for Ledbetter’s lower pay, doesn’t it make sense to treat the ongoing decision not to change that as ongoing discrimination?

46

Martin James 08.27.08 at 6:09 pm

“It’s just liberalism with a guilty conscience, coupled with resentfulness about this very fact.”

That’s the whole brand. I want to elect as many politicians that artfully rationalize my base desires as I can.

47

abb1 08.27.08 at 6:11 pm

That isn’t going to be reviewed 20 years later.

Why not? Wiki:

Ledbetter claimed that she had been evaluated unfairly because of her gender and therefore had been paid significantly less than her male colleagues. Goodyear claimed their evaluations were non-discriminatory and only focused on worker competence. The jury found for Ledbetter and awarded back pay and damages.

What’s so complicated here? That’s what the jury system is all about. For that matter, why can’t it be reviewed 120 years later?

48

Roy Belmont 08.27.08 at 6:26 pm

The larger context in which these jots and tittles appear and the “equal pay for equal work” debate grinds on, is the 88th anniversary of the 19th Amendment on Aug. 26.
Less than a century of women voting in the US.
Is that not bizarre?
Bizarre to the point of fantastic?
Shriekingly bizarre, horribly fantastic.
Yet there it is.

49

Aaron Baker 08.27.08 at 7:15 pm

Jay Nordlinger seems, at times, like a fairly nice man. I’m sure one could have an instructive conversation with him about music–a subject he appears to know quite well. But if he ever had two successive logically connected thoughts in his life, I fear it was only by accident. All he manages to do here is broadcast, once again, his tiresome little prejudices.

50

Aaron Baker 08.27.08 at 7:17 pm

Oh, and Jonah Goldberg ends up where he always does: that place where, when you’ve reached it, you don’t even deserve to be despised.

51

Sebastian Holsclaw 08.27.08 at 7:26 pm

“If that evidence was available to the jury, it was available internally to management before she sued—claiming that they were simply unaware, as a matter of fact, of why she was making less money doesn’t make sense under these circumstances.”

Come on. The evidence that shows up after a comprehensive review of post-discovery documentation is not the same as what shows up under what you raised as: “Management is aware, on an ongoing basis, of its opinion of the quality of Ledbetter’s work. “

No one has the time or energy to do that kind of a comprehensive investigation into every single empoloyee.

52

Sebastian Holsclaw 08.27.08 at 7:38 pm

“If (that is, I’m asking you to take this as a postulate) there was evidence that Goodyear was internally aware of the original basis for Ledbetter’s lower pay, doesn’t it make sense to treat the ongoing decision not to change that as ongoing discrimination?”

It depends on what the evidence was. If you had a memo or something from 5 months before that said “It looks to me like Ledbetter has been discriminated against, oh well, let’s continue on.” feel free to treat it as an new discriminatory act and sue over it.

Issuing a routine payroll check years after that decision? Not a new discriminatory act.

And you haven’t even tried to approach why it makes sense for the rule to apply to people who stick with the company as opposed to those who leave once the discriminatory choice makes it past 6 months.

In order to investigate a years-old charge of making a discriminatory choice, you run into all of the same problems whether or not the employee was on the payroll 6 months ago. Why does the person smart enough to leave get hit by the statute of limitations while the person who stays doesn’t? All of the practical/evidentiary problems are exactly the same when investigating the years-old choice. But for the person who quit, no lawsuit.

Why?

Because we understand that you can’t possibly get a fair investigation for a matter like this in something that old.

But that is equally true if the person stayed employeed with the company for 15 years.

We sometimes allow the discovery rule to get around that. Which would be a perfectly normal way of dealing with it, without writing a novel set of legal rules for this one type of case.

53

Barry 08.27.08 at 8:07 pm

Abb1: “what’s wrong with counting every paycheck as a new act of discrimination? ”

Sebastian: “Because it is perfectly possible that the choice of discrimination was made by a manager who is no longer with the company or is not currently the plaintiff’s manager, so each paycheck is not a new act of discrimination.”

I gotta remember to use that argument, when disputing charges with a company – people leaving a company now seem to void legal/financial claims.

This *is* standard GOP thinking – corporations can avoid things by changing people, but individuals can’t change, and so have lifelong liability.

54

abb1 08.27.08 at 8:09 pm

No one has the time or energy to do that kind of a comprehensive investigation into every single employee.

Lilly Ledbetter was a supervisor at Goodyear Tire and Rubber’s plant in Gadsden, Alabama, from 1979 until her retirement in 1998. For most of those years, she worked as an area manager, a position largely occupied by men. Initially, Ledbetter’s salary was in line with the salaries of men performing substantially similar work. Over time, however, her pay slipped in comparison to the pay of male area managers with equal or less seniority. By the end of 1997, Ledbetter was the only woman working as an area manager and the pay discrepancy between Ledbetter and her 15 male counterparts was stark: Ledbetter was paid $3,727 per month; the lowest paid male area manager received $4,286 per month, the highest paid, $5,236.

55

Sebastian Holsclaw 08.27.08 at 8:23 pm

And? A salary band that goes from 44,700 to 62,800 isn’t that shocking for management-level employees.

Furthermore ‘equal or less seniority’ isn’t a particularly strong performance indicator compared to for example sales or market development.

The existence of pay differential does not indicate sex discrimination. I’m perfectly happy to agree that in this particular case the jury, when given all the evidence over the course of almost 20 years found that there was discrimination. But everyone admits that the choice point of the discrimination took place outside of the statute of limitations. That is why we have to reach to the administrative workaround of the really short statute of limitations. That wouldn’t have been necessary otherwise.

There are better ways to address the problem rather than just make a rule (which is what Congress wanted to do) which makes it possible to sue over a choice made decades ago and very likely by a person not even still in the company.

I’ve mentioned two. Both have been used to perfectly good effect in a wide variety of cases, and do a good job of balancing different important interests. Why reinvent the wheel, create new issues, and ignore old problems, when you could deal with a whole functioning system if you just invoked the discovery rule for sexual discrimination cases of this type and lengthened the statute of limitations to 2 or 3 years?

56

mpowell 08.27.08 at 8:24 pm

I think in at least part of Sebastian’s argument, he is 100% correct. It would be completely ridiculous to regard it as a new act of discrimination for a company to give an employee a standard raise even if 20 years ago they were discriminated against and received lower raises that led to a lower pay than similar employees today. The fundamental reason for this is precisely the reason that Sebastian outlines: companies never increase your pay unless they absolutely have to. So whatever pay history led to your current pay situation, unless you bitch about it, it’s not getting increased. And even if you bitch about it, it might not help the situation at all.

I think he also makes a good argument that the real problem is that 6 months is the wrong kind of statute of limitations on this kind of thing. I think the real question is, does this apply to the Ledbetter bill? I think, certainly, in that lawsuit, you would argue that it was the ongoing pay increase decisions that constituted discrimination. It’s really not possible to say if it was her last pay raise or a series of pay raises 5 years ago that was a specific act of discrimination. In any given instance, there could have been factors that justified a lesser or greater raise than the typical manager. But it’s the systematic pattern over the course of years that was probably compelling to the jury. And that should be evidence that they can consider without being constrained by statutes of limitation. But what about the proposed legislation? I’m not really sure it will behave the way Sebastian suggests, honestly, I don’t really know. If it does, that seems kind of silly. And perhaps there are better ways to define the statute of limitations regardless. But I think keeping the door open on the possibility that a long history of pay raise decisions is what constitutes the discriminatory behavior is perfectly acceptable, in my mind. If the law functions by allowing additional discriminatory pay decisions to extend the statute of limitations, I would support that.

57

mpowell 08.27.08 at 8:32 pm

Sebastian, I would like to add that I support your proposal in 54, but hasten to point out that if Republicans wanted to, they could try to push this kind of alternative legislation and far more effectively deflect the criticism they’ve received. That they’ve chosen not to do so, is indication, to me, that this is not where their concern lies.

58

someguy 08.27.08 at 8:46 pm

mpowell,

It might not. We can hope it wouldn’t. But the plain language suggests that it very easily could

“3) an individual is affected by application of the decision or practice, including each time compensation is paid.”

59

abb1 08.27.08 at 8:47 pm

There are better ways to address the problem rather than just make a rule (which is what Congress wanted to do) which makes it possible to sue…

Why not put it this way: ‘to remove the rule that makes it impossible to sue’? So that you don’t need any workarounds – the case goes to a judge, then, if it’s not obviously frivolous, to a jury, and they decide. What possible harm can come out of it – the government will spend a hundred million dollars more every year? Isn’t it a reasonable trade-off?

60

Adam 08.27.08 at 9:13 pm

The right is pushing back because they know that this is a very viable line of attack.

Nobody disputes that the people the bill helps were discriminated against. No one asserts such discrimination is legitimate.

McCain’s vote was indefensible. I think it’s time to willie horton his ass. Get some clips from that North Country movie about the sexually harassed miner. Play them in the background. If you can work in his philandering, is zero rating from NARAL and his calling his wife a cunt, then you’ve hit the trifecta.

Leave the bastards clutching their pearls…

61

Sebastian 08.27.08 at 9:18 pm

“I think in at least part of Sebastian’s argument, he is 100% correct. It would be completely ridiculous to regard it as a new act of discrimination for a company to give an employee a standard raise even if 20 years ago they were discriminated against and received lower raises that led to a lower pay than similar employees today. “

It is worse than that really. According to the Ledbetter case, this counts too:

Say that 20 years ago a misogynistic jerk hired a woman at $30,000 and a less qualified man at $40,000 out of a pool of 50 people. The manager was fired two years later for drug use or something and replaced by a fair manager. This fair manager doesn’t discriminate against women at all. Her budget is tight so she doesn’t give salary adjustments, but she is permitted to give a 4% raise for standard work and a 5% raise for good work. The woman who was hired by the misogynistic jerk gets 5% raises for 20 years. The man who was hired by the misogynistic jerk does ok but only get 4% raises for 20 years. At the end the woman is making about $79,000 while the man is making $87,000. Their initial $10,000 difference has been eroded somewhat, but not eliminated.

The statute of limitations is 6 months for a discriminatory act. Under the proposed Ledbetter rule, the company is on the hook for the 20 years gone discriminatory act by the man who has been gone 18 years and that they weren’t aware of until a deep litigation discovery process.

Now assume the exact same fact pattern, but the pay differential had some completely legitimate reason (the $40,000 guy came with a book of business or was MUCH more qualified). Now the company is fine because there was no discrimination.

From an evidentiary standpoint, there is going to be a lot of evidence lost in those 20 years, so being sure that you are in case A instead of case B is going to be tough. And that is a big part of why we have statutes of limitations.

62

Sebastian 08.27.08 at 9:29 pm

“Why not put it this way: ‘to remove the rule that makes it impossible to sue’?”

Because statutes of limitations exist to balance the legitimate need to allow certain types of cases against the fact that the further removed you are from the act, the harder is to get a fair examination of such cases. This is especially true in discrimination cases where the question is likely to turn on fuzzy evidence about qualifications or performance. Someone gets a 5% raise and someone else gets 2%. One is a woman the other is a man. Is it discrimination? How much documentation is in the record? If the person who got 2% doesn’t have much negative in the record is it because the manager was discriminating, or because the manager was trying to give the employee a bit of a break and a chance to improve without a nasty paper trail? Documenting subpar behavior in formal files wasn’t as prominent a practice 20 years ago as it is now.

Does your answer change if you find out that it was a man who got 2% and a woman who got 5%?

63

J Thomas 08.27.08 at 9:31 pm

Can this be extended? Say you get wrongly convicted of murder, and then after 20 years of incarceration it’s proven that the procedures that got you convicted were completely wrong and unjustifiable.

Should you be owed anything for your wrongful conviction?

Should you be owed any more for 20 years wrongful imprisonment than if it was only 6 months? By this reasoning no, it was only one wrong decision 20 years ago and there were no further bad decisions that affected you.

64

Adam 08.27.08 at 9:44 pm

Sebastian

Companies better have procedures for ensuring that women are not systematically discriminated against. If you are the new human resources director and you find out that the female employees are being paid 20% less than the male employees in the same position then you damn well better do something. The threat of being sued ensures companies put safeguards in place to prevent and remedy discrimination.

65

abb1 08.27.08 at 9:46 pm

Sebastian,
in order to bar some hypothetical abuse (that, is likely be rejected by the juries anyway) you’re willing to throw out some very legitimate cases where obvious injustice, without a doubt, was perpetrated.

If that’s your general approach, it should create some interesting contradictions with your general worldview as I understand it. Why not ban all guns, for example? Or drugs? To prevent likely abuse, you know.
If it’s not your general approach, why exception in this case?

66

Sebastian 08.27.08 at 9:47 pm

“Should you be owed anything for your wrongful conviction?

Should you be owed any more for 20 years wrongful imprisonment than if it was only 6 months? By this reasoning no, it was only one wrong decision 20 years ago and there were no further bad decisions that affected you.”

On balance, if you can prove you were wrongfully convicted of murder enough that you can get out of jail, the evidentiary issues we are talking about are likely to be rather stronger than most discrimination cases.

But so far as getting the prosecutor for the wrongful prosecution 20 years ago, the statute is run and he is off the hook. And that is for criminal violations, much less civil violations.

And if you want to argue that statutes of limitations are just always wrong, you can do that. But if you do, I suspect you are more in the “I don’t understand why this fence is here so I should be able to tear it down” mode of progressive thought than anything that leads to useful governing choices.

Statutes of limitations exist for almost everything but murder. And frankly, given fairness-at-trial issues, I’d be much more likely to argue that it would be appropriate to have a statute of limitations on murder and extend the logic that direction than I would to say that the murder case implies we should get rid of statutes of limitations for everything.

67

Sebastian 08.27.08 at 9:50 pm

“If that’s your general approach, it should create some interesting contradictions with your general worldview as I understand it. Why not ban all guns, for example? Or drugs? To prevent likely abuse, you know.
If it’s not your general approach, why exception in this case?”

What in the world are you talking about. My general approach:

You can’t be prosecuted for drug possession past the statue of limitations.

You can’t be prosecuted for robbery past the statue of limitations.

You can’t be prosecuted for selling guns past the statue of limitations.

You can’t be prosecuted for snatching a purse past the statue of limitations.

You can’t be prosecuted for a bar fight past the statue of limitations.

You can’t be prosecuted for stealing candy from a baby past the statue of limitations.

AND

You can’t be prosecuted for sexual discrimination past the statue of limitations.

Where precisely are you detecting an exception that I’m making just for the sexual discrimination case?

68

someguy 08.27.08 at 9:56 pm

abb1,

Why not go whole hog? Let everything be decided by a juries. No silly wuss rules like statute of limitations for any civil case. Why any silly rules at all? You just take your case to a jury. The jury decides based on how it feels and that is that.

Civil cases currently come with a statute of limitations for very good reasons.

Why should we specifically exempt discrimination cases from those rules?

69

bianca steele 08.27.08 at 10:03 pm

There are companies that review all salaries periodically and ensure not only that they fall within a band but that they make sense. Sounds like Goodyear did not engage in this practice. But I wouldn’t want fact to intrude upon the free-range deductive chains the Internet has long been known for: everybody has a right to their opinions.

70

someguy 08.27.08 at 10:17 pm

Goodyear was wrong. Ledletter got the shaft.

Now.

What is the best way to prevent that from happening again?

Doing away with any statute of limitations for such discrimination cases?

Or maybe extending the statute of limitations for such discrimination cases?

71

John Thacker 08.27.08 at 11:09 pm

A sense that unequal pay for women ‘is ok’, in this sense, is precisely the reason one would oppose the Lily Ledbetter Act.

In exactly the same sense that a sense that terrorism ‘is ok’ is precisely the reason one would oppose the Patriot Act. Sheesh. Smears abound.

The Lily Ledbetter Act won’t work, and would violate privacy and civil liberties in addition to empowering a useless bureaucracy of busybodies. Like the Patriot Act.

It’s extremely difficult to judge all the tradeoffs of employee performance, how much people value free time, open spaces, travel, flexible work hours, risk at a job, and all the other things that go into pay. Currently companies do it through ttrial and error, and a company that discriminates by guessing wrong about employee performance pays a price. (Discrimination is a little easier in union-dominated jobs, at least when the union, like in the Jim Crow South, wanted discrimination in the contracts.)

72

dogfacegeorge 08.27.08 at 11:31 pm

“It’s extremely difficult to judge all the tradeoffs . . . that go into pay.”

True. Which is why it is very hard to prove discrimination in pay. But Ledbetter did prove it, and proved that she was harmed as a result of the discrimination. Goodyear got off on a pure technicality, and the Ledbetter Act tries to eliminate that technicality.

McCain is “OK” with the technicality because he values the interests of corporate scofflaws more highly than the rights of women to equal pay.

73

dogfacegeorge 08.28.08 at 12:02 am

Let’s look at Ledbetter as an example. If she were a man, she would have been paid at least $500 a month more. So, for the two years before she filed suit, Goodyear pocketed $6000 that it would have paid any guy working in that position. McCain, and several of the commenters here, are OK with this.

74

Guest 08.28.08 at 12:58 am

The only thing wrong with this post is that it was thought about, written down, and published. I literally cannot believe that thoughtful folks on the left haven’t figured out by now that people like Ponnuru and Goldberg – virtually every right-wing blogger – are *bullshitting*. Their purpose is to destabilize, confuse, and agitate. And when you respond *you become part of the problem*.

Please please please dear God stop responding to the Bullshit Machine. Use your brains for organizing and creating. When you publish stuff like this, you are being used. Plain and simple.

75

Adam 08.28.08 at 1:08 am

dogfacegeorge is on the ball here.

Given that discrimination was proven here, it makes every sense to bludgeon McCain with this. Given his poor record on respecting women in general the charge sticks.

So stick it right up his a**.

76

J Thomas 08.28.08 at 1:25 am

Guest, you have a point.

So let’s go back to fundamentals.

Ramesh Ponnuru:

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.

What a disgusting attitude on McCain’s part. And the Ponnuru he rode in on.

As a side issue, what could be done to promote equal pay for equal work? How about we require companies to publish each employee’s pay and bonuses so that the other employees can see.

That’s a radical proposal, one that a whole lot of employers would be very upset about. But apart from their preferences, why not? It would still be hard to prove unequal pay, because companies could go to a little effort to tailor each job so it’s unique. But as it is there’s some trouble about employees trying to find out how much other employees make. If it’s available and you don’t like it, then deal with it.

Why should we have a system that depends on secrecy?

77

john holbo 08.28.08 at 2:12 am

“And when you respond you become part of the problem.”

I’m not even allowed to make fun? Where’s the fun in that?

78

Barry 08.28.08 at 2:33 am

Sebastian, the many many examples you gave have one characteristic in common – they’re over.

Conspiracy, for example,can be ongoing.

79

functional 08.28.08 at 2:50 am

Ponnuru’s response:

Matt Yglesias, Kevin Drum, and John Holbo—in increasing order of turgidity—take me on for contesting Hillary Clinton’s claim that John McCain thinks that paying women less for equal work is “okay.” Rather than make counterarguments, I’ll just give in and adopt their standards. I can now say that people who want to weaken or repeal the Patriot Act are okay with terrorism. They’re not willing to take the measures I consider necessary to deal with the problem, after all.

80

Righteous Bubba 08.28.08 at 3:25 am

I can now say that people who want to weaken or repeal the Patriot Act are okay with terrorism.

Well, there were already measures in place to prevent terrorism, including a system in which presidents get the latest info on potential threats. Kind of an ass-covering thing.

81

J Thomas 08.28.08 at 3:26 am

“Functional”, either you or Ponnuru or McCain could come up with your own improved proposal to enforce the laws that currently are unenforceable. You could argue why your proposal would be more effective at allowing the law to be enforced.

Or you could argue that it’s better to leave the law unenforceable, which would put you with Ponnuru and McCain against equal pay for equal work.

82

bi 08.28.08 at 4:19 am

Guest:

I literally cannot believe that thoughtful folks on the left haven’t figured out by now that people like Ponnuru and Goldberg – virtually every right-wing blogger – are bullshitting. Their purpose is to destabilize, confuse, and agitate. And when you respond you become part of the problem.

I disagree. The mistake isn’t responding; the mistake is responding as if the right-wingers’ words are supposed to mean something.

For these guys, t’s not about truth or good government, it’s about “search and destroy”:

All the rightbloggers’ labors have one great purpose: to associate the Democrats’ cause with any negative thing of the remotest relevance.

And the right-bloggers’ messages follow a grand template that goes like this: “[LIBRULZ] is [UNGOOD]”. Mix and match different values of [LIBRULZ] with different values of [UNGOOD], and they’ll all start to make sense.

– bi, International Journal of Inactivism

83

abb1 08.28.08 at 6:38 am

@67, someguy
This is not about the statute of limitations. I read two articles yesterday about the case and both of them said that ‘every paycheck is a new violation’ (provided that you can prove that you’re being paid less because of discrimination) had been commonly accepted interpretation of this law before the Ledbetter case. This is how the system had functioned for decades, and it makes perfect sense: you can prove that you’re being shafted today – it could be a result of some big decision made years ago, or, as in Ledbetter case, a result of many little decisions made over the years, doesn’t matter – you’re being paid less today than you should be – therefore every paycheck is a violation. This is perfectly logical and commonsensical.

Then Alito&Co. forced their business-friendly perverse interpretation.

Then this new law was proposed to merely change the interpretation to what it always was before the Ledbetter case.

It was filibustered by the Reps in the Senate.

This is the story.

Hypothetical drug-addicted managers who hire you and leave have nothing whatsoever to do with it.

84

abb1 08.28.08 at 9:51 am

Here, for example:

In an opinion by Justice Samuel A. Alito Jr., the majority rejected the view of the federal agency, the Equal Employment Opportunity Commission, that each paycheck that reflects the initial discrimination is itself a discriminatory act that resets the clock on the 180-day period, under a rule known as “paycheck accrual.”

[…]

Under its longstanding interpretation of the statute, the commission actively supported the plaintiff, Lilly M. Ledbetter, in the lower courts. But after the Supreme Court agreed to hear the case last June, the Bush administration disavowed the agency’s position and filed a brief on the side of the employer.

85

Bruce Baugh 08.28.08 at 10:23 am

The position taken by Sebastian and other conservatives on this sort of thing is simple and contemptible. We must all trust businesses’ ability to perform very complex evaluations and categorizations likely to shift burdens onto customers – insurance, for instance. We must never believe that it is possible or practical for businesses to perform very simple evaluations and categorizations when it might interfere with corporate perks and profits – equal pay, for instance.

Having employees whose sole job is to find reason to deny claims and cancel policies, and the equivalent in other industries – good. Having anyone in accounting or human resources spend half an hour each month looking at simple spreadsheets to identify and scrutizine pay anomalies – bad.

86

J Thomas 08.28.08 at 1:00 pm

Let’s back off a little here. People have the right to hold whatever political opinions they choose, and vote for them too.

There’s nothing inherently wrong with somebody being a monarchist or a feudalist etc, provided they don’t try to overthrow the government to get their way. There’s nothing wrong with McCain being a male supremacist, except he tries to pretend he isn’t.

Politicians who’re opposed to legal equality ought to say so and not try to hide it. McCain is acting like he’s ashamed of his beliefs.

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Righteous Bubba 08.28.08 at 1:19 pm

There’s nothing inherently wrong with somebody being a monarchist or a feudalist etc, provided they don’t try to overthrow the government to get their way.

Revolutions are awful.

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Sebastian Holsclaw 08.28.08 at 2:30 pm

“had been commonly accepted interpretation of this law before the Ledbetter case. “

I already explained that it was the commonly accepted work administrative workaround to get around a very short statute of limitations.

That doesn’t make it a correct interpretation of the law, it means that there was a commonly used administrative workaround which was used to evade what was seen as an overly draconian statute of limitations.

That doesn’t mean the commonly used administrative workaround was legal, nor does it mean that when it comes time to fix the draconian statute of limitations that it is wise to use the administrative workaround.

Treating this as if it was new information when I’ve been talking about it the whole time is kind of weird.

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abb1 08.28.08 at 2:58 pm

It doesn’t sound to me like “administrative workaround”.

…the view of the federal agency, the Equal Employment Opportunity Commission, that each paycheck that reflects the initial discrimination is itself a discriminatory act that resets the clock on the 180-day period, under a rule known as “paycheck accrual.”

It sounds like a doctrine.

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lemuel pitkin 08.28.08 at 3:47 pm

I already explained that it was the commonly accepted work administrative workaround to get around a very short statute of limitations.

But how do we know it’s an administrative workaround, and not just a straightforward interpretation of the law? Seems to me the pre-Goodyear rule, which the Ledbetter act would restore, was simply this:

“If I pay you less simply because of your sex then I am engaged in discrimination, even if I also paid you less because of your sex at various points in the past.”

Why is that so unreasonable?

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Sebastian 08.28.08 at 4:53 pm

“It doesn’t sound to me like “administrative workaround”.

…the view of the federal agency, the Equal Employment Opportunity Commission, that each paycheck that reflects the initial discrimination is itself a discriminatory act that resets the clock on the 180-day period, under a rule known as “paycheck accrual.””

Well, first because the initial history of the act didn’t allow that.

Second, when you have a statute of limitations it doesn’t make internal logical sense to interpret the rule as removing the statute of limitations.

Third, Courts review administrative endruns around the law all the time. I certainly didn’t hear this interesting left-wing response to the Court’s rebuke on the EPA decisions recently.

Fourth, interpreting each paycheck as a new act of discrimination doesn’t get rid of any of the problems that a statute of limitations tries to balance out.

Let me expand on that point. One of the main problems that a statute of limitations (SOL) addresses is the fact that evidence grows stale over time. This means you are more and more likely to get a particular slant on a case by chance rather than because you are getting the truth. If you have a dscriminatory act 20 years ago, but refresh the SOL every paycheck, the decision to refresh it every paycheck doesn’t magically make the evidence from 20 years ago fresher.

Another reason why an SOL can be important is that we want to encourage people to raise violations when they discover them rather than wait until they are disgruntled for other reasons. That is why strict applications of the an SOL are often coupled with the discovery rule (that the SOL doesn’t start to count time until initial discovery of the violation). The law attempts to strike a balance between evidentiary issues (things become stale over time) and a desire to not more strongly incentivize hiding the violation in the hopes of lucking out on the SOL. (SOL for criminal matters typically do not have a discovery rule, but I treat this as a civil matter. In reality it is kind of a hybrid but I’m operating in the favor of your argument so I’d be surprised if you contest the point).

The balance is delicate, and perhaps not perfectly found. But it is a BALANCE that exists in pretty much all torts and for pretty much all crimes.

This rule completely does away with the balance, without seemingly even attempting to think about why we have it in every other kind of case.

Merely asserting that each paycheck is a separate act does indeed get around the SOL. But the issue in question is the long-ago decision. Investigating that decision is what the legal question turns on. The mere assertion that each paycheck is a separate act does nothing to deal with the policy reasons why we have statutes of limitations–it in fact completely ignores them. Asserting that each paycheck is a new discriminatory act doesn’t really help us because we still have to investigate the old decision. So now you are stuck investigating something from years ago, with none of the normal legal procedures that apply when balancing all of the competing policy interests which apply to investigating matters from years ago.

Why discrimination should avoid the legal procdures that are routinely used for chemical exposure, or wrongful death, or other very important legal matters goes completely uninvestigated because you are using a workaround on the SOL instead of tackling the policy issues head on.

And if you tackled the policy issues head on, instead of trying to just stick it in the eye of the Supreme Court, I’m relatively sure you wouldn’t choose a system that effectively just gets rid of the SOL completely when investigating old decisions.

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Bruce Baugh 08.28.08 at 5:16 pm

At heart, I think, this is a religious disagreement, or a disagreement about ideas so encompassing and foundational that they act like a creed. Some of us believe, deep down, thoroughly, that markets are efficient – if something happens outside government interference, and keeps happening, and the companies that do it flourish at least as well as others that don’t, then by demonstration that thing is in fact efficient. Our job is then to understand it better and help it spread rather than to change it just because we dislike it, because efficient markets are better than inefficient markets that pander to passing notions of right and wrong.

The naive observer would think that discrimination against broad categories of employees must be inefficient. It cuts you off from big pools of labor, and requires additional effort at some point to identify the characteristics to be discriminated against. Champions of the American system certainly claim that discrimination wouldn’t flourish in a freely competitive environment. But here we have well-established discrimination going on for decades. Could there be government interference rewarding it? No, the government marketplace distortions are all in the other direction. This is obviously a manifestation of the true efficiency we see dimly. Our job, therefore, is to work out explanations of why it’s efficient to treat women as second-class in play, celebrate that efficiency, and move on to the next triumph of the market.

The idea that any productive business or industry would hobble itself with unnecessary inefficiency…well, that’s like suggesting there’s no God. If there’s no efficiency in important aspects of business, then it’s all just death and regulation from here on out.

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geo 08.29.08 at 6:04 pm

The idea that any productive business or industry would hobble itself with unnecessary inefficiency…well, that’s like suggesting there’s no God. If there’s no efficiency in important aspects of business, then it’s all just death and regulation from here on out.

This is an inspired paragraph. I intend to plagiarize it repeatedly and shamelessly. Fair warning.

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