I made a comment that debating a corporate lawyer is like debating an Exxon ‘scientist’, and another pointed out that ‘they’re people too’. My point was that they’re very, very dishonest people, who are well paid to maintain a certain position, no matter how honestly indefensible.

You keep saying that. I don’t understand. Say you have proof that an employer is discriminating against your client right now. And it looks like they’ve been discriminating against your client for 20 years, but the farther back you go the more muddled the evidence gets.

Wouldn’t it make sense to go ahead with the lawsuit and let the judge or jury decide how far back the evidence is convincing?

Whyever should we say you can’t bring suit about the present discrimination just because it’s been happening for a long time?

Yes.

“You have an odd view of that.”

It may be odd, but it seems to me substantially correct. If you have reason to think that the apparent presence of arguments in my post is some sort of illusion, you are welcome to provide it.

“You started out tarring opposition to Ledbetter as necessarily meaning that those opposing it don’t want to be fair to women.”

No, actually I didn’t say that – if it actually makes a difference to you. I was rather snarky, yes, but also careful to say that those who oppose Ledbetter, without proposing alternative measures to address that type of problem, probably don’t think that government should be in the business of addressing those sorts of problems. They think it ‘is ok’ for government not to address that sort of problem. Either because, in principle, that’s not the job of government; or because the problems are not regarded as serious; or because the costs of doing anything about those problems are regarded as outweighing the benefits – which, since it is hard to believe that costs would be terribly high – tends to carry us back to the first conclusion.

“You don’t address the fact that [that] argument is exactly like saying that trying to address procedural concerns in criminal law means that such a person wants to set criminals free.”

Yes, because there is no such fact. We’ve been over this already. If you oppose measure x, for dealing with problem y, because you prefer measure z, for dealing with problem y, then it would be unfair to accuse you off not wanting to deal with problem y. Obviously so. This is Ponnuru’s line, and you are evidently determined to push it. But it’s irrelevant. Because there is no reason whatsoever to attribute this sort of ‘I’m opposing x because I prefer z’ motivation to McCain, and good reason not to attribute it to him. Because there would seem to be no z. He isn’t you, after all. And the motivation that we end up attributing to him – namely, belief that government should not be getting its nose into sorting out certain sorts of problems – is not that uncommon a sentiment, among conservatives. So where’s the implausibly in my guess as to what is motivating him?

You’ve been arguing along up to this point? You have an odd view of that. My impression is that you pretty much haven’t touched any of the issues I’ve raised across either thread, including the very most important one—the fact that there are already tried and true methods of dealing with the problems you thought existed and you have offered not even the slightest reason why the normal methods should not be used.

You haven’t touched the SOL issue at all, which is pretty much THE issue. You started out tarring opposition to Ledbetter as necessarily meaning that those opposing it don’t want to be fair to women. You don’t address the fact that argument is exactly like saying that trying to address procedural concerns in criminal law means that such a person wants to set criminals free. (An argument that wouldn’t normally get much traction around here).

Which of your responses before the one where you say you are moving from ‘arguing along’ do you believe you were arguing along?

“But you don’t seem to have an argument that Ledbetter wouldn’t have been good (alas, not perfect) legislation, since you have now clarified that, in principle, you think redressing Ledbetter-type problems is an appropriate and worthy goal.”

Jesus Christ. You would think that after endless rounds of talks about the Iraq war, we wouldn’t fall in to the idea that worthy goals=good policy.

Ledbetter is a horrible policy to try to get after a perfectly worthy goal. It destroys an enormous number of protections that exist in the normal legal system for nearly every type of civil and criminal case, and it does so apparently for no reason whatsoever with the possible exception of having fun sticking it to the Supreme Court.

Statutes of limitations are normal legal protections.

If you don’t understand why they are there, lets talk about that. I tried to do that, and you haven’t responded.

If you do, let’s talk about why inequality of pay should be the only thing that pretty much shouldn’t have that normal legal protection. I tried to do that, and you haven’t responded.

And I even talked about why stupid politicians do what they do, and how Ledbetter as proposed by the Democrats was another iteration of that. You didn’t respond to that, you just repeat your argument.

“And you have no argument that Ledbetter would unleash a horror of frivolous suits.” We hadn’t even gotten there yet. It wasn’t until just this second that you admitted that it was even theoretically possible to oppose Ledbetter without being a woman hater. I was trying to get to that point before going off on the rest of it.

I’m not opposing the good for the perfect. Ledbetter is bad. It strips normal legal protections for no reason whatsoever. Your response to that appears to be “but the cause is good”. Which is to say the Bush response to eviscerating civil rights to combat terrorism, or the overly law-and-order response to the appropriateness of destroying procedural rights in criminal cases.

You were offering serious arguments up until this point so I was happy to argue along, this doesn’t seem to be very serious, so I presume we’ve hit bottom. (After all, I certainly don’t SEEM to believe that it is impossible for a company to be innocent of sexual discrimination. Why would I seem to believe that?)

You have an argument that another way of addressing Ledbetter problems would be better, policy-wise. But you don’t seem to have an argument that Ledbetter wouldn’t have been good (alas, not perfect) legislation, since you have now clarified that, in principle, you think redressing Ledbetter-type problems is an appropriate and worthy goal. And you have no argument that Ledbetter would unleash a horror of frivolous suits. And you don’t seem to have any argument that McCain and other Republicans share your personal motivation for opposing Ledbetter – namely, desire to oppose the good for the sake of the more perfect. Because then they would have amended or proposed alternative legislation.

First, the Equal Pay Act does have a longer statute-of-limitations (two years—three if “willful” [don’t ask]) than does Title VII (180 days, but 300 days if in a “deferral” state [also, don’t ask]). The Equal Pay Act is also much closer to strict liability than is Title VII. But the Equal Pay Act applies only to sex discrimination. So, unequal pay on the basis of race, color, national origin, religion, and certain types of retaliation cannot be brought under the Equal Pay Act, but only under Title VII. Similarly, unequal pay on the basis of disability would only be under the Americans with Disabilities Act, and unequal pay on the basis of age would only be under the Age Discrimination Act, both of which the courts will almost certainly feel compelled to interpret the same as Ledbetter interpreted Title VII (indeed, the Americans with Disabilities Act incorporates the enforcement provisions of Title VII).

Second, Ledbetter did not merely change an “administrative work-around”. As has been pointed out, before Ledbetter, the courts interpreted Title VII such that Lily Ledbetter would have defeated the statute-of-limitations argument (which is why she did in fact defeat that argument both at the trial court and at the appellate court and is probably why her lawyers waived the Equal Pay Act argument). And there’s a very good reason why the courts interpreted Title VII that way: the Supreme Court itself had said that that’s how Title VII was to be interpreted. The Supreme Court case was Bazemore v. Friday, 478 U.S. 385 (1986), which was unanimous. Here’s a link: http://supreme.justia.com/us/478/385/case.html

Thus, in Ledbetter, the Supreme Court, 5-4, cut the guts out of a unanimous decision from twenty years earlier. Justice Alito does his best to hide this, but it is clear that Ledbetter basically overruled Bazemore.

The point of the Ledbetter Act in Congress is simply to return the law to what everybody thought it was before Ledbetter cut the guts out of Bazemore.

Again, I don’t follow. If an agent of the corporation discriminated against a woman (as was proved in Ledbetter, and if the benefits of the discrimination (in the form of unpaid wages) have accrued to the corporation, then why shouldn’t the corporation have to make restitution? What does it matter that the corporate agent in question has moved on and that no one currently employed by the corporation has actively discriminated against the woman?

Sebastian:
You’re talking about Title VII as if it were a criminal law. It’s not—it’s a regulation. It’s intended to change the way people do business. (I’m not a lawyer but this doesn’t seem past the abilities of a laypersion.) You don’t talk about how people do business, which I find odd. When I hear managers and HR people talk about the hassles of anti-discrimination laws, I don’t hear them talk the way you do. I hear them talk about paperwork, CYA, absurd corporate rules.

As far as whether it’s just or not, either in intention or as it’s actually administered, that has little to do with whether there are good arguments tending to show it has undesirable consequences for some people.

Whether they deserve to win or not is not the issue here, they may very well deserve to win, depending on the circumstances. The issue is that Sebastian doesn’t want to even allow these cases to be looked into.

No. I’m assuming that the issue is equal pay for equal work.

If a corporation wants to argue that the reason they offer considerably less pay today for equal work today is because of a decision they made 20 years ago that they have forgotten, then they don’t deserve to win.

If it’s true that this is how they decide their salaries, they ought to find a better way—and not just because they might lose lawsuits over it.

As a purely strategic question, I don’t see why corporations can’t individualize the jobs when it gets to high enough positions to be lawsuit material. Give each manager a unique title and a couple of unique responsibilities, and if it comes to a lawsuit then argue that the jobs aren’t actually comparable.

But if you want to argue that it’s right to give people widely different pay for doing the same job, based on historical accidents that you can’t explain, it sure sounds like you’re opposed to equal pay for equal work.

That isn’t true. Each them alone could be violations. I’m all for finding legtimate ways to punish Goodyear for that type of thing. But that justify all possible ways. There are normal legal methods that could be tweaked without throwing away the entire normal legal structure.

No it really doesn’t because you still have to investigate the old decisions.

Look, I’m perfectly willing to agree that the 6 month SOL is too short. It really is. I’m just saying that throwing out the whole idea of SOL and the whole balance that it tries to acheive between potential injustice toward plaintiffs and potential injustice toward wrongly accused defendants is silly. If it is too short you can lengthen it with making the new length “total career”. The paycheck rule doesn’t even attempt to balance anything. It just makes the SOL extend throughout the entire employment.