Well, at least Ponnuru admits he’s not making any counter-argument to the Holbo-Yglesias-Drum line. But if he wants to start saying that people who oppose the Patriot Act must think terrorism is ok, he’s going to need to find some standards of his own. Ours – which he proposes to borrow – are not up to the job.
What can I say to make it clearer? It is possible, I suppose, that McCain opposed Ledbetter because he wanted to see Title VII enforcement enabled in some completely different way. But, absent evidence of this, isn’t it more plausible that McCain – just like some of Ponnuru’s colleagues at the National Review – is ok with least some portions of Title VII being rendered dead letters (the letter ‘k’, at least. As in: “(k) The terms “because of sex” or “on the basis of sex” … )
[UPDATE: Actually, I guess all of Title VII is sort of an enforcement dead letter now, in most cases that are likely to arise? Not just the sexy bits, eh?]
But why would McCain object to bits of Title VII? Well, this is blue-sky thinking, but it might be because he thinks those bits of VII are sort of not so ok. Why? If he is really at a loss for a reason, he could probably ask some commenters in my first thread, who seem to think these sorts of legislative measures are a bad idea.
But here goes. I suspect it’s because he doesn’t think government should be in the business of trying to achieve the ends that those bits of Title VII seek to achieve. Why not? Because what happened to Ledbetter is not regarded as such a bad thing. Why not? Because she should have quit, or something. If you aren’t getting paid enough, ask for a raise and threaten to quit. Anyway, it would be a huge pain to try to enforce this stuff. (Just think of the lawsuits.)
But how can I read these cruel thoughts in McCain’s mind! I’m just guessing that he thinks like a Republican. Here’s another angle on the problem: either the free market fixes these things without government intervention or it doesn’t, or in between. Any point along this continuum is more acceptable than government stepping in. Why? The worst that’s going to happen is more Ledbetters, and (for whatever reason: you make your own guess, I’m tired of guessing) that’s not great, but not so bad. Otherwise it would be something we would want to fix. (It’s not very nice to treat your employees this way. But it is not the government’s job to make everyone play all nicey-nicey. Something like that.)
But the market will fix the problem! So it’s wrong to say McCain thinks it’s ok. He thinks it should be fixed.
Must I spell it out at turgid? (which Ponnuru thinks means length). It’s not as though conservatives propose to try the market for a while and, if it doesn’t work for the Ledbetters, try legislation instead. Why not? Because – to repeat – Ledbetter-type cases are not great but basically an acceptable result, otherwise they would be worth fixing. (Don’t ask me why. Go ask your father!)
Sheesh. Do I have to read conservatives their own cue cards?
In short: does Ponnuru look at McCain and see a Dem? If not, then what is he so upset about?
That reminds me. Perhaps this is one of those misheard Ledbetter lyric situations.
{ 84 comments }
Adam Kotsko 08.28.08 at 4:33 pm
I remember back when Tim Burke said that he was no longer going to assume that people supporting the Iraq War were worth arguing with. It might be time for something like that with conservatives — recognizing that Actual Existing Conservativism in the U.S. is a fundamentally malign movement with no principles aside from increasing the power of the monied class. Ledbetter is objectionable because — fuck you, that’s why. Why should workers be able to sue their employers?
Thomas 08.28.08 at 4:56 pm
This is pretty much wrong on every point.
On Ponnuru’s response: Of course your standards are up to the job. If you aren’t willing to go as far in remedying a wrong, or in preventing a harm, as someone else, then obviously you don’t consider the wrong worth remedying or the harm worth preventing–that’s your standard. The opponents of the Patriot Act, then, are ok with terror.
The Ledbetter case didn’t make Title VII a “dead letter”; it enforced the law as written, which meant that it provided the limited remedy that Congress enacted, no more and no less. The proposed legislation in response essentially removed the statute of limitations, gave standing to persons other than the employee to sue, and changed the standards for determining whether discrimination occurred. One could quite easily support Title VII without supporting the proposed legislation, just as one could support some anti-terror legislation but oppose the Patriot Act. To be committed to particular goals doesn’t mean that one approves of all measures possible to achieve those goals.
One can even think that what happened to Ledbetter was (assuming certain facts) an injustice while believing that we have to consider the costs of the lawsuits. Just as in the case of the Patriot Act one might think that we have to consider the costs of the loss of civil liberties. Statutes of limitations serve important ends–at least, most of us believe that. You apparently have strong feelings the other way–perhaps you can provide some detail on the thinking you’ve done on that point.
As for the supposed tension between the free market and the proposed legislation: Title VII is in place. Government has stepped in. Has someone proposed repeal of Title VII? McCain certainly hasn’t. Perhaps you can “interpret” Golberg and Nordling to get there, in that imaginative way of yours. The debate is about whether government should do more, not about whether the free market can or should solve the problem.
And where do you get the idea that Ponnuru doesn’t know what turgid means?
bianca steele 08.28.08 at 4:58 pm
Some Republicans (this one isn’t a joke) seem to prefer enforcing norms using social pressure over government regulation. Hence they prefer the traditional small town culture to modernity, which they call “liberalism†and blame for everything bad. The existence of places like The Corner would seem to contradict this — but they all have college degrees and were awarded places at a supposedly important publishing institution — so it would seem they feel they’ve transcended the need to be limited to a small group’s social norms, the way ordinary people have to be.
Of course that’s a guess. A large number of Republicans don’t fit that model — for example, libertarians (who generally don’t prefer small-town life and social enforcement of traditional norms), and also neoconservatives (who generally think of themselves as secular cosmopolitans with elite artistic and intellectual tastes). I don’t have enough data to characterize those “independents†who tend to vote Republican (“Reagan Democrats†and similar groups), but I’d guess they don’t match this characterization either.
Anyway, this would explain why they oppose Title VII and anti-discrimination measures generally. If the people want to stop discriminating, they will. If they don’t, they should be permitted to act in accordance with their own norms.
bianca steele 08.28.08 at 4:58 pm
Also, what reasons do we have to believe politicians share beliefs with the theorists and journalists who back their campaigns, much less with the thinking people who vote for them but don’t speak out publicly? McCain and other Republicans are probably happy for the support of National Review (which is consistently, reliably partisan when it counts), without necessarily agreeing with the writers.
Roy Belmont 08.28.08 at 5:09 pm
Certain types of human have actively wanted slaves since the idea first came up, way back in the early Whatever-cene.
Once the rest of us got hip to how inhuman slavery makes things and made it officially a lame desire, it went underground, like any capable pathogen.
It comes back up as a byproduct of misogyny, of patriarchy, of capitalism, as an intentionless result of ongoing seductive manipulation into the status quo ante.
Tart yourself up and survive. Further the aims of capital and get access to tarts.
Inequity is universal, always with us. Part of evolution, life. La.
Lalalala.
Women getting equal treatment in the workplace means traditional gender patterns will deliquesce, or detumesce, or something.
The television has replaced grandparents in the average home, eliminating the demands of tradition, and that’s in turned allowed the slave-o-philes to slowly but steadily replace genuine with artificial tradition, and accustom the dim and ignoble to their bright-colored harness, to the unthinkable goad and the fascinating but always-receding promise of reward.
Once slaves are bred through a few generations they’re more domesticated than captive.
A few more breeding cycles and it’s pretty much just the way things are.
Fealty to legacy inequities is what’s driving what’s driving McCain, not the man himself. He’s just responding to poll data.
The numbers are measuring the yearning of court eunuchs for stability in the kingdom.
Mordy 08.28.08 at 5:19 pm
On Ponnuru’s response: Of course your standards are up to the job. If you aren’t willing to go as far in remedying a wrong, or in preventing a harm, as someone else, then obviously you don’t consider the wrong worth remedying or the harm worth preventing—that’s your standard. The opponents of the Patriot Act, then, are ok with terror.
This doesn’t seem comparable to me. Opponents of the Patriot Act feel that the act won’t solve the terrorism problem, and will hurt Civil Rights far more than any aid they’ll give to that problem. Opponents of the Ledbetter Bill haven’t claimed that the Bill won’t help this sort of discrimination (and if they feel it won’t, that’s something to discuss – what kind of legislation would fix the problem). They claim that it will raise too many lawsuits. This would be akin to people being against the Patriot Act because it’ll be too expensive and time-costly to implement. No one is against PA for simply this reason.
Sebastian 08.28.08 at 5:22 pm
It seems to me that the Ledbetter arguments sound like arguments against Statutes of Limitations at all.
Mr. Holbo, do you see why we have statutes of limitations or at least the arguments about why we have them?
Do you disagree with having them at all?
Do you know what the normal methods of dealing with the late discovery of violations are?
Do you believe that for some reaons the normal discovery rule (allowing the statutes of limitations for most non-crimes to run from the date of the plaintiff discovering the harm) does a worse job of balancing the policy considerations of a statute of limitations than merely getting rid of them?
Do you have a particular disagreement with statutes of limitations in general, or do you believe that sex discrimination is so different from every other type of crime or tort that it should be thrown in with murder as pretty much the only thing without a statute of limitations?
The problem with the Ledbetter rule was that it took an administrative workaround to a harshly strict statute of limitations (6 months is indeed pretty short) and tried to just throw it into law without bothering with any of the normal considerations about why we have statutes of limitations.
I posted this is the other thread, which I think is dead, so I apologize if you read it already.
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.
Ben A 08.28.08 at 5:25 pm
Well said, Thomas.
John Holbo 08.28.08 at 5:31 pm
I assume Ponnuru actually knows what ‘turgid’ means, but I was nodding at the fact that he uses it where one might have expected ‘long’ or ‘lengthy’.
Look, Thomas, the difference between opponents of the Patriot Act and McCain on Ledbetter is that it is reasonable to think that opponents of the Patriot act want to fight terrorism by other means, but not reasonable (in my view) to think McCain is interested in seeking to achieve the ends that Title VII aims at by other means than Ledbetter. I suspect he doesn’t think that the government should be in the business of seeking to enforce equality in this way, at least the sex discrimination stuff. I’ll bet he isn’t terribly scandalized by the facts of the Ledbetter case. It’s just one of those things that happens. By contrast, liberals really are upset when terrorists strike. Is this point of contrast so surprising?
“One can even think that what happened to Ledbetter was (assuming certain facts) an injustice while believing that we have to consider the costs of the lawsuits.” Yes, that’s probably a big part of the reason why McCain thinks it’s ok for this Ledbetter stuff to happen. I mention this line of reasoning in my original post. By contrast, liberals do not suggest that it’s wrong to fight terrorism because we would have to consider the costs of doing so, and probably – whatever they are – they would be too high.
Let me try to make it even simpler. When Kevin Drum’s wife asks him ‘does McCain really oppose equal pay for women’ it is possible that she thinks McCain might actually force people NOT to pay equally. But I suspect Drum married someone more sensible. She is, in effect, wondering whether McCain thinks it is appropriate for the government to incur costs – and encourage lawsuits that will cost – in an attempt to prevent/fix cases like Ledbetter’s. And the answer is probably: no. McCain probably doesn’t really see this as something the government should be aiming to do. I’m sure he knows Title VII is law. I’m sure he recognizes it would be politically unpopular to seek its repeal. But he doesn’t mindseeing it toothless, because he doesn’t really think the things it aims at are appropriate aims for government. So he gets what he wants, without having to pay a political price. This is fine. Politics ain’t beanbag. You can be a bit tricky about getting what you want. But, by the same token, it’s fair enough to point out that this is happening.
RCMoya612 08.28.08 at 5:43 pm
@ Thomas, #2: Um, no. If you find harm in something–in this case terrorism–you look into possible remedies to mitigate or uproot that harm. You don’t begin by bumbling forth, legislating every which way and in the process destroy the fundamental guarantees of freedom explicitly and implicitly written into the Constitution. A sociopolitical cost-benefit analysis wouldn’t hurt right about here. The problem with the USA PATRIOT Act was that it WAS a shoot-from-the-hip response with little to no thought given to its consequences.
The issue of ‘harm’ here is entirely different. Mordy put it well: ‘They claim that it will raise too many lawsuits. This would be akin to people being against the Patriot Act because it’ll be too expensive and time-costly to implement. No one is against PA for simply this reason.’
@ Bianca, #3: Err, no. If even a cursory look at the harm principle is any indication, you don’t just let small-time bigots to stop discriminating at their discretion. I don’t recall the US Constitution making any special mention of localised norms to be taken into account in policy debates. Quite the contrary, in fact, as the Founders were quite hostile to the tyranny of the majority.
RCMoya612 08.28.08 at 5:49 pm
I mean to say, ‘you just don’t let small-time bigots get away with discriminating at their discretion.’
And a thousand apologies for any other little mistakes.
John Holbo 08.28.08 at 5:51 pm
Sebastian, in principle it is a fine thing to get deep into the policy weeds. But in a way this misses the simple point – which is admittedly such a pesky little thing that I shouldn’t still be bothering it. There are many Republicans – for example, Ponnuru’s colleague Nordlinger – who think it is ‘unseemly’ to worry about inequality. Now, he might on reflection moderate that position a little. But basically he doesn’t care, and doesn’t think government should care. This is a fairly standard sort of view for a Republican. You think that something is ‘ok’ in the sense that government shouldn’t try to fix it. I was amused that Ponnuru feigned shock at the attribution of attitudes that were exhibited by two of his fellow posters, on the same page with him.
As to the statute of limitation point: why is opposing a statute of limitations that you yourself admit is too short tantamount to opposing statutes of limitations, tout court? What is your explanation for why Republicans haven’t proposed something more sensible – perhaps an amendment to Ledbetter, rather than a filibuster against it – if you agree with the general consensus that the SOL in this case too short?
Sebastian 08.28.08 at 6:17 pm
“As to the statute of limitation point: why is opposing a statute of limitations that you yourself admit is too short tantamount to opposing statutes of limitations, tout court? ”
I don’t understand the question. The Ledbetter rule as put forth would effectively destroy any statute of limitations in those type of cases. So if you are going to put out the idea that you can’t oppose the Ledbetter rule without effectively being against the idea that equally qualified and equally performing women ought to be paid the same in the same company as equally performing and qualified men, that sounds to me like you are completely against the policy considerations of a statute of limitations in sexual discrimination cases.
Are you in fact against statutes of limitations for sexual discrimination cases, or do you just somehow not understand how it plays out if you codify the administrative work around which led to the Ledbetter case?
Thomas 08.28.08 at 6:27 pm
John, it’s difficult to discuss these things with you while you continue with your imaginative interpretations of what Goldberg and Nordlinger actually said. Nordlinger didn’t come close to suggesting he thinks it unseemly to worry about inequality. That’s entirely you on his behalf.
As for why Republicans haven’t proposed something more sensible to provide a remedy with a longer SOL: because there’s a law that provides that now. It’s called the Equal Pay Act and it has (I believe) a 4 year SOL. My understanding is that Ledbetter would have had a claim under the EPA, but her lawyers waived it and instead relied solely on Title VII. Surely one needn’t think that every law should have the same SOL, or that bad lawyering in one case should mean that a statute should be revised.
As for your response on the Patriot Act, I don’t see what you’re getting at. Yes, if, following you, we imagine that our opponents don’t share our aims, we can conclude that they don’t share our aims. I suspect that Ponnuru would be just as happy to adopt that position as the original.
I find this particular paragraph baffling: ““One can even think that what happened to Ledbetter was (assuming certain facts) an injustice while believing that we have to consider the costs of the lawsuits.†Yes, that’s probably a big part of the reason why McCain thinks it’s ok for this Ledbetter stuff to happen. I mention this line of reasoning in my original post. By contrast, liberals do not suggest that it’s wrong to fight terrorism because we would have to consider the costs of doing so, and probably – whatever they are – they would be too high.” What do you mean? Are you suggesting that McCain shouldn’t consider the costs of the enforcement regime? That seems obviously wrong to me, but maybe you have an argument. And I thought–perhaps too generously–that the reason that some liberals opposed the Patriot Act is because the costs were too high. Perhaps you mean to say that McCain doesn’t support any remedy, because he believes that the costs will always outweigh the benefits. But this is just more of the imagining our opponents disagree with us on aims.
Ben A 08.28.08 at 6:28 pm
John,
But he doesn’t mindseeing it toothless, because he doesn’t really think the things it aims at are appropriate aims for government
There are many Republicans – for example, Ponnuru’s colleague Nordlinger – who think it is ‘unseemly’ to worry about inequality
It seems like your claim here is that McCain, Nordlinger, and perhaps ‘many republicans’ don’t think discrimination on the basis of sex is an important injustice, and don’t believe government should enact policies to redress sex discrimination (like laws prohibiting gender discrimination).
This is, I think it is fair to say, absurd and unsupported by anything you offer here. As Thomas notes above, McCain has not proposed repeal of Title VII. No one has. No doubt there are libertarians who that think that job discrimination on the basis of race and gender should be legal. But this is not, to my knowledge, a mainstream position of the Republican party nor of John McCain. You are in a hole. Stop digging.
Barry 08.28.08 at 6:28 pm
n 08.28.08 at 6:17 pm
John Holbo: “As to the statute of limitation point: why is opposing a statute of limitations that you yourself admit is too short tantamount to opposing statutes of limitations, tout court? â€
Sebastian: “I don’t understand the question. The Ledbetter rule as put forth would effectively destroy any statute of limitations in those type of cases. ”
Stop lying. The Ledbetter rule would no more ‘effectively destroy any statute of limitations ‘ than any prosecution/suit for *****ongoing***** actions would.
Sebastian 08.28.08 at 6:28 pm
“What is your explanation for why Republicans haven’t proposed something more sensible – perhaps an amendment to Ledbetter, rather than a filibuster against it – if you agree with the general consensus that the SOL in this case too short?”
The same reason I suppose Democrats don’t normally go out of their way to propose enforceable restrictions on the kinds of abortions that most people think are wrong, and that Roe would allow legislation on: the political fighting between parties is stupidly considered way more important than just about anything else. Also the fear that everything is a slippery slope where if you compromise anywhere, the terrorists win (oh I mean that communism takes over American enterprise, oops what I really meant was that the capitalists therefore get to lord it over the peons and make them eat dirt). Politicians seem to like scoring points against each other well above actually making good policy.
The Ledbetter rule itself in Congress is part of the same stupid theater game. It clearly wasn’t a well thought out policy response to a too-short statute of limitations. That could have been remedied with a longer statute of limitations or with the tried and true discovery rule.
It was a big F!@# You to the Supreme Court because of a perception that the Supreme Court is too conservative. It took an administrative workaround that the Supreme Court found illegitimate and tried to put it into law exactly in the same shape as the workaround because that would send a message to the Supreme Court more than a considered policy change would.
lemuel pitkin 08.28.08 at 6:30 pm
Let’s assume — strictly arguendo — that Sebastian is right and the Ledbetter law is a kludgy workaround for an overly short statue of limitations.
Then we have four possibilities:
(1) Title VII with longer SoL.
(2) Title VII with Ledbetter kludge.
(3) Title VII as-is, i.e. largely unenforceable under Goodyear.
(4) No Title VII at all.
Most of us at CT would rank them in that order — in particular, we prefer (2) to (3), i.e. we regard employment discrimination as a sufficiently serious problem that we prefer a suboptimal law against it, to no law at all.
Conservatives by and large have the reverse order of preferences, altho some “principled” ones might still prefer (1) to (2) on the grounds that even bad laws should be enforced consistently.
Sebastian’s preferences, which he seems to be imputing to Ponnurua and McCain, is that while it might be nice, in an ideal world, to punish employment discrimination, it’s sufficiently unimportant that if the choice is between no enforcement and a non-standard approach to statute of limitations, no enforcement is obviously the way to go.
Even assuming McCain et al. only share Sebastian’s prefernce for (3) over (2) (and evidently over (1), since they haven’t made any effort to extend the SoL either), it’s not clear why this is so different from preferring (4). I mean, look, Sebastian, if some procedural glitch meant we had to either have no statute of limitations on armed robbery, or no law against armed robbery, you’d regretfully let the SoL go, now wouldn’t you?
lemuel pitkin 08.28.08 at 6:33 pm
(And as others have pointed out, “the Ledbetter arguments sound like arguments against Statutes of Limitations at all” is BS even accepting Sebastian’s own premises, since the employer can extinguish their liability at any time by correcting pay differentials that were the result of discrimination. Or of course if the employer quits.)
Sebastian 08.28.08 at 6:42 pm
“Stop lying. The Ledbetter rule would no more ‘effectively destroy any statute of limitations ’ than any prosecution/suit for *****ongoing***** actions would.”
The problem is that it turns on a decision made in the past that has impact on current paychecks. Merely classifying current paychecks as ongoing discriminatory acts **if the original decision was in fact discriminatory** doesn’t do anything to deal with the fact that the legal question will still turn on the long gone and allegedly discriminatory act. Statutes of limitations attempt to balance competing policy problems in investigating long gone acts. They typically say that at some point, you just aren’t likely to be sure enough of the facts to make punitive rulings and then it cuts them off. The Ledbetter rule skips any of that analysis by just pretending that a paycheck moves the act to be investigated into the present.
I hate to recycle, but as I said in the other thread:
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. What survives is subject to chance. Perfectly legitimate defences can be lost over 20 years. Witnesses aren’t nearly as reliable over 20 years.
The Ledbetter rule, doesn’t approach that like every other area of tort and criminal law (with the exception of murder, which is the only crime for which there is regularly no SOL).
My question remains: what is so different about sexual discrimination in the workforce lawsuits such that we should throw all that out?
Thomas 08.28.08 at 6:50 pm
lemuel, How about if make your list five items long, and for the new (3) we insert this: Title VII with death penalty for any individual who violated the law. Obviously–I hope it’s obvious!–that’s a suboptimal law. Do you think that CT’ers will still rank it above the current law?
Offered the choice between no SOL on armed robbery and no armed robbery, I’d choose no armed robbery and would rely on the lesser included offenses. The values protected by SOL are that important.
Sebastian 08.28.08 at 6:58 pm
“I mean, look, Sebastian, if some procedural glitch meant we had to either have no statute of limitations on armed robbery, or no law against armed robbery, you’d regretfully let the SoL go, now wouldn’t you?”
If some procedural glitch lets robbers go free, you think the choices are get rid of procedural rights or have no law against armed robbery? Do you seriously want to go there? Which procedural glitches shall we talk about first? Miranda rights? They sometimes let robbers go based on a failure to read from a card. Therefore the only options are to get rid of Miranda rights or get rid of laws against robbery? This is a rather fascinating turn in the argument that I wouldn’t normally expect on a left-leaning blog.
Especially when you are going to pass a law explicitly dealing with procedural glitches, why are those ever the only two options?
And I would be appalled if we got rid of statutes of limitations for robbery. I honestly believe that at some point evidence is much too likely to be murky. I also believe that if the most important evidence turns on state of mind “what did X believe about Y” the evidence is likely to be even murkier after lots of time has gone by than “were X’s blood spots all over the victim”. I am half willing to argue that there should be a statute of limitations on murder rather than analogize the reverse that the lack of SOL on murder should argue against SOL in general. I feel that strongly that eventually the evidence on which to hang a conviction, and with which to make proper defences, goes stale. I’m not completely willing to go there because I understand the countervailing balance to be had against helping further incentivize secrecy (but I wonder if in the murder case the marginal difference there is super small anyway).
The key problem here is that you aren’t extending to any corporation the idea that they might be falsely (with malice) or mistakenly (without malice) accused of sexual discrimination. You then want them to defend decisions that could be from a decade or older. In every other civil case we weigh these things out.
lemuel pitkin 08.28.08 at 7:01 pm
Which procedural glitches shall we talk about first?
How about the one we’re actually talking about?
Cala 08.28.08 at 7:02 pm
what is so different about sexual discrimination in the workforce lawsuits such that we should throw all that out?
Note that as I understand it, what’s at issue here is whether the person discriminated against has standing to sue, not whether their suit would win (if the records are as bad as you say.)
But the real issue here is, I think, the shortness of the statute of limitations combined with the general secrecy of salary information. You gave an example of someone who has been with the same company for 20 years, but take someone who’s a new hire just fresh from college. Maybe hired following a job fair in December with a September start date. As I understand the current interpretation, the clock starts with the discriminatory act, so this means that our new hire on Sept. 15 has already lost the standing to sue even if she discovers the discrimination with her first paycheck over beers with her buddies. That seems a little weird.
And while murder is the only (or one of a handful) of crimes with no SOL, most crimes don’t have a clock as short as six months.
lemuel pitkin 08.28.08 at 7:04 pm
How about if make your list five items long, and for the new (3) we insert this: Title VII with death penalty for any individual who violated the law. Obviously—I hope it’s obvious!—that’s a suboptimal law. Do you think that CT’ers will still rank it above the current law?
No, obviously not. Were you really wondering about this?
nick s 08.28.08 at 7:07 pm
Remember, Squeaky Ponnuru is widely considered one of the Serious Young Conservatives. Which is why Nye Bevan’s line really has stood me in good stead for many, many years. Squeaky’s just in it for the lulz.
lemuel pitkin 08.28.08 at 7:11 pm
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.
Sebastian, have you ever worked in the private sector? There is not a company in the world that operates this way.
Salary numbers are *constantly* being reviewed. The notion that wages would be left on autopilot for year after year, or that no one would notice that women were being systematically paid less than men, doesn’t pass the laugh test.
I mean, drug-addled manager is fired. And *nobody* reviews his decisions to see if there might be some problems there? Yeah, right.
If a company is systematically paying women less than men for a given job, it’s discriminating against women. That’s the common-sense view and in all the words you’ve written on this subject there isn’t one explaining why that view is wrong.
Sebastian 08.28.08 at 7:13 pm
“And while murder is the only (or one of a handful) of crimes with no SOL, most crimes don’t have a clock as short as six months.”
Right which is why I think it should be extended to the general civil level which is in the 1-3 years range.
“As I understand the current interpretation, the clock starts with the discriminatory act, so this means that our new hire on Sept. 15 has already lost the standing to sue even if she discovers the discrimination with her first paycheck over beers with her buddies. ”
Which is why we would typically use the discovery rule (that the clock starts ticking on discovery when you knew or should have known that something wrong had happened). This balances the time problems against the intentionally hiding things problem.
Title VII doesn’t have a discovery rule and it has a too short SOL. The proper remedy to that is to enact the regular discovery rule that is used in about half of civil violations (though interestingly I believe in no criminal ones) and to lengthen the SOL to the more standard levels.
The Ledbetter rule is a just politically spitting at the Supreme Court.
LizardBreath 08.28.08 at 7:19 pm
The Ledbetter rule is a just politically spitting at the Supreme Court.
No, it’s restoring the longstanding EEOC interpretation of the law that worked just fine without the bad effects you’re so afraid of. Whether the SC was right or wrong in their statutory interpretation of the law, their holding changed the manner in which the law was being enforced. The new law was restoring the prior method of enforcement, which had been working just fine.
Ginger Yellow 08.28.08 at 7:22 pm
Sebastian, your example is spectacularly weak.
In the first instance, of course the company should be on the hook, statute of limitations or no, because not only was the original salary discriminatory, after 18 years in which the victim of discrimination has outperformed its beneficiary, she’s still earning less. If that isn’t ongoing discrimination I don’t know what is.
In the second instance, despite the lack of an original discriminatory decision, she has again outperformed her colleague for 18 years (an aeon in modern business) and is still earning less, long after any advantages the colleague may originally have had have disappeared (as acknowledged by the repeated higher but insufficient pay increases). Again, a pretty terrible injustice. Maybe you don’t think it’s enough of an injustice to merit legal sanction, but then you can’t simultaneously argue that McCain doesn’t think inequal pay for equal work is OK. This is inequal pay for superior work for two decades.
It doesn’t matter that the manager’s discretion is limited – the whole point is that policies matter as well as people. Companies need to be vigilant about discrimination and be able to rectify it. If their policies mean they can’t, they should be held accountable for those policies. You argued in comments to the previous post that the Ledbetter bill could force companies to calculate average salaries
roac 08.28.08 at 7:25 pm
Title VII takes money away from corporate shareholders and gives it to salaried employees. Which group is more likely to be Republicans? So why is it surprising that Republicans are not enthusiasts for enforcement of Title VII?
This general mode of analysis has great explanatory power. One further example in which the flow wnet the other way: Bankruptcy “reform” (people with credit card problems vs. bankers).
Thomas 08.28.08 at 7:25 pm
lemeul, the point is that in weighing legislation, it’s not only the aim of the legislation that is considered. So it may be that conservatives disagree with you not on the weight to be accorded those situated as Ledbetter was, but on the weight to be given to the the costs of the legislation.
Yes, if “a company is systematically paying women less than men for a given job, it’s discriminating against women.” That’s covered by the EPA. The EPA, unlike Title VII, doesn’t even require evidence of an intentional act of discrimination. So, given that Title VII isn’t the exclusive remedy for these wrongs, why does it need to be amended?
Another Damned Medievalist 08.28.08 at 7:56 pm
Sebastian @ 20 — I think you need to re-check your math and also compare what, if the woman is doing better work and getting that 5%, she would have been getting had she been hired at the higher wage to begin with. I make that a rise to just over $101k over 20 years. That’s a pretty big chunk of change.
And please note that your so-called solution relies on a single individual trying to remedy your hypothetical woman’s suffered inequity. It shouldn’t be up to a manager, except that, as soon as such a discriminatory discrepancy was noticed, said manager should have notified payroll, who, under law (i.e., the law that should exist, not that does) should then have issued a check for backpay. THe woman should also have been notified immediately so that she could claim that backpay through the courts if the company was unwilling to pay up.
Patrick 08.28.08 at 8:04 pm
Opposing Ledbetter because you believe it will lead to too many lawsuits is like opposing the Patriot Act because you believe it will lead to the US arresting too many terrorists.
If you want to use this argument, you have to go the extra step and balance the interests involved. You have to argue that the lawsuits will be more frivolous than not, or more costly to society than the benefits they provide, or at least argue something rather than nothing.
Thomas 08.28.08 at 8:09 pm
ADM, when someone discovers an historical discrepancy in pay and can’t, because the initial decisions are remote in time, figure out the reason, does this mean that, in your view, there should automatically be liability? Sebastian meant the second of his two examples to be the case where we wouldn’t want there to be liability, but it seems the consensus here is that there should be liability in both cases.
Patrick 08.28.08 at 8:11 pm
Civil statutes of limitations generally do not begin to count down until you know or should have known of the potential suit. A more proper comparison would be a statute of repose, which runs from the time of the wrongdoing or the injury. These also tend to run much, much longer than a statute of limitations- often in the area of a decade or so.
Sebastian 08.28.08 at 8:17 pm
“And please note that your so-called solution relies on a single individual trying to remedy your hypothetical woman’s suffered inequity. It shouldn’t be up to a manager, except that, as soon as such a discriminatory discrepancy was noticed, said manager should have notified payroll, who, under law (i.e., the law that should exist, not that does) should then have issued a check for backpay. THe woman should also have been notified immediately so that she could claim that backpay through the courts if the company was unwilling to pay up.”
The situation I describe doesn’t have the new manager discovering the inequity in intial pay at any point. It has the new manager rewarding with the high-level annual raises and giving the other person merely average raises. I was illustrating how the manager could make 18 non-discriminatory decisions to treat the employee well and still have problems.
And again, no one is bothering to address the problem of why we bother having statutes of limitations.
“If a company is systematically paying women less than men for a given job, it’s discriminating against women.”
But we aren’t typically talking about class action suits. We are typically talking about decisions about one woman at one point in time. The lawsuits are rarely about ‘systematically paying *women* less than *men*’. The are typically about paying one particular woman less than a number of men. So the decisions about that particular woman are important. And if the relevant decisions are far in the past, good evidence explaining the decisions may be difficult to come up with, even if the company is wholly innocent of discrimination.
geo 08.28.08 at 8:27 pm
Thomas: Yes, if “a company is systematically paying women less than men for a given job, it’s discriminating against women.†That’s covered by the EPA. The EPA, unlike Title VII, doesn’t even require evidence of an intentional act of discrimination. So, given that Title VII isn’t the exclusive remedy for these wrongs, why does it need to be amended?
Obviously because, as everyone including Sebastian agrees, Title VII’s SOL is inadequate to its legislative goal. Why shouldn’t it be amended, at least to the degree Sebastian suggests?
What about Thomas’s other point: that EPA also provides a remedyfor discrimination? If this is true, then why isn’t Title VII altogether superfluous? I suspect there’s a good reason, but I don’t know it.
CJColucci 08.28.08 at 8:35 pm
Reasonable people can disagree over the correctness of the Ledbetter decision. Most courts had operated on a contrary rule without the sky falling, and it’s by no means obvious whether the other courts or the Supremes correctly understood Congress. But the Supremes get the last word, at least until Congress speaks. Whether statutes of limitations are, in principle, a Good (or, at least, Necessary) Thing, is not, as far as I can see, seriously disputed.
But none of this is the point. The point is whether it is fair to infer that McCain isn’t deeply concerned with the problem of the Ledbetters of the world. That isn’t answered by arguing that McCain MIGHT have unarticulated, principled reasons for opposing the PARTICULAR solution proposed in Congress and MIGHT prefer a different solution. If McCain thinks any of that, he can answer the charge that he doesn’t care by saying what his principled objections are and what he thinks should be done instead. And if he thinks that, regrettably, nothing practical can be done, he can say that. [Sound of crickets chirping] And the question isn’t answered by saying that McCain has not made the politically suicidal proposal to get rid of Title VII altogether. McCain has a long record in public life. If there’s anything in that record that he can hang his hat on, he can answer the charge that he doesn’t care by pointing it out. Don’t hold your breath.
geo 08.28.08 at 8:54 pm
The point is whether it is fair to infer that McCain isn’t deeply concerned with the problem of the Ledbetters of the world.
Oh ,surely Sebastian, Thomas, and the other CT conservatives are far too sensible to imagine that McCain is deeply concerned — or in fact cares the faintest fart — about discrimination against women, at least the kind that would cost any likely Republican campaign contributor anything to remedy. Do we really need to argue about that?
LizardBreath 08.28.08 at 9:06 pm
And if the relevant decisions are far in the past, good evidence explaining the decisions may be difficult to come up with, even if the company is wholly innocent of discrimination.
But it’s not a strict liability statute — in the absence of any evidence of discrimination, there’s no liability. You seem to be assuming insane juries here.
Sebastian 08.28.08 at 9:20 pm
“Oh ,surely Sebastian, Thomas, and the other CT conservatives are far too sensible to imagine that McCain is deeply concerned—or in fact cares the faintest fart—about discrimination against women, at least the kind that would cost any likely Republican campaign contributor anything to remedy. Do we really need to argue about that?”
I’m voting for Obama, not McCain. I’m not a McCain supporter. I haven’t liked him for more than a decade. My point is that opposing a Ledbetter law has very little to do with hating good policy re: sex discrimination. And in fact supporting a Ledbetter law suggests a lack of attention to good policy re: sex discrimination. (Of the bleeding heart “I have good intentions” variety).
But Holbo is saying that opposing Ledbetter means you don’t think it is important that women get equal pay for equal work. Which is ridiculous.
“But it’s not a strict liability statute—in the absence of any evidence of discrimination, there’s no liability.”
First, the statistical disparity alone will be used as some evidence of discrimination.
Second, it may be possible to marshall ‘some’ evidence that could be case in a discriminatory light that would not prevail if more evidence were available. Which evidence survives will be haphazard. Statistically it may even out over a number of cases, but that is cold comfort to the companies that didn’t actually discriminate.
Third, testimonial evidence from the plaintiff will almost certainly be offered. Depending on how long ago the incident allegedly happened, this may be the only evidence available–the manager may be dead or unavailable, documents one way or another may be unavailable, colleagues who could have shed light on a recent event are likely unavailable for a very old event. All of these methods of sorting correct allegations from incorrect ones suffer over time. If you are opening up the window to a duration only limited by the length of time of work you are definitely opening up innocent firms to liability.
But if the testimonial evidence is all that is available it is very possible (certainly no worse than 50/50) that a jury will find for the plaintiff.
LizardBreath 08.28.08 at 9:48 pm
the statistical disparity alone
Pardon? We’re talking, at least in Ledbetter’s case, about a solo plaintiff. There are no ‘statistics’. If we were talking about a large enough group of plaintiffs that statistics meant something, they’d actually be quite good evidence of discrimination.
Third, testimonial evidence from the plaintiff will almost certainly be offered.
You seem to be envisioning a case in which the plaintiff was aware of the discrimination but sat on her rights for twenty years. Even under the paycheck accrual rule, she’d have probably a laches problem, and certainly a huge credibility problem: “You were aware of this discriminatory action in 1988, and you’re just suing now? Any particular reason?”
Ledbetter’s actual scenario — no knowledge of the discriminatory decisions at the time made, all relevant evidence within the control of the company, is much more likely.
Sebastian 08.28.08 at 9:59 pm
First, you are positing that the corporation is actually guilty of discrimination. Disgruntled worker lawsuits have in fact been encountered before.
Second, it is completely possbile that she could come to knowledge of disparity (which we don’t know if it is the result of discrimination) a year or two ago and still give testimony about how she was treated by the mean old boss years ago:
Plaintiff: “I always thought he devalued me. He gave me looks. He didn’t seem to respect my opinions. There was one time 20 years when I had an idea that he ignored but when John proposed it he ran with it. That was how it always was with him. But I didn’t realize until recently that he hired me at less money than John.”
Manager’s response: I’m not testifying because I’m dead.
John’s response: I’m not testifying because I quit the company 18 years ago, and I can’t be subpoenaed where I am now.
Company’s response: We don’t have any record of that project she is talking about.
And pretty much every scenario she will raise could easily go like that–even when there was no discrimination whatsoever.
J Thomas 08.28.08 at 10:16 pm
And if the relevant decisions are far in the past, good evidence explaining the decisions may be difficult to come up with, even if the company is wholly innocent of discrimination.
If that was true of a company I had stock in, I’d want to know. So I could sell the stock.
Here’s my company confessing in public. “We don’t know why we pay one employee more than another. They do the same work and they both do it well enough. But somewhere back in the mists of time we decided to pay one of them more, and we’ve followed the precedent of that forgotten decision ever since.”
Sell.
CJColucci said the important thing, though. McCain is running for office. If he wants voters to think he supports equal rights for women, he should do something to give them that impression. Sebastian’s argument that the Ledbetter bill is flawed and so McCain can help filibuster against it without being against equal rights could be true but it doesn’t address the issue.
If McCain voted against a bill that supported israel, he would surely want to point out how he supports israel and this particular bill didn’t do enough, and he would propose or support a new bill that supported israel better. He wouldn’t just oppose the one bill and make no response to the resulting charges of antisemitism.
If McCain wants voters to believe he supports equal rights for women, he should do something about that. Or if he wants voters who oppose equal rights for women to vote for him, he’s doing the right thing already.
Sebastian Holsclaw 08.28.08 at 10:24 pm
“We don’t know why we pay one employee more than another. They do the same work and they both do it well enough. But somewhere back in the mists of time we decided to pay one of them more, and we’ve followed the precedent of that forgotten decision ever since.”
And since neither of them complained, we decided not to waste your money, stockholders, by giving the lower paid one $10,000 unasked. We just gave both of them goodish raises each year and they stuck around.
J Thomas 08.28.08 at 10:33 pm
“And since neither of them complained, we decided not to waste your money, stockholders, by giving the lower paid one $10,000 unasked. We just gave both of them goodish raises each year and they stuck around.”
And that’s why we are involved in this expensive very-public lawsuit where we admit we don’t know what we’re doing.
Sebastian 08.28.08 at 10:57 pm
If you could have forseen it 20 years ago, you are amazing. Since we don’t actually discriminate against women.
bianca steele 08.28.08 at 11:45 pm
“Policy debates”?
LizardBreath 08.28.08 at 11:54 pm
First, you are positing that the corporation is actually guilty of discrimination.
No. I am positing that testimony, whether true or false, about events twenty years ago, that is the sole support for a claim of discrimination brought now, has a huge credibility problem, and is therefore unlikely to lead to liability if there’s no other supporting evidence.
Thomas 08.28.08 at 11:55 pm
John, the update to the post is odd. Why would you think that most of the discrimination barred by Title VII wouldn’t be discovered until some later period? You don’t really give things much thought before posting, do you?
Thomas 08.29.08 at 12:05 am
lizard, if the plaintiff makes out a prima facie case under Title VII, the defendant employer has a duty to produce evidence of a legitimate reason for the actions it took. If the defendant employer can’t produce such evidence, it loses.
Sebastian Holsclaw 08.29.08 at 1:18 am
“I am positing that testimony, whether true or false, about events twenty years ago, that is the sole support for a claim of discrimination brought now, has a huge credibility problem, and is therefore unlikely to lead to liability if there’s no other supporting evidence.”
Seriously? I thought you’ve dealt with juries. I’ll give you 50/50 with just plaintiff’s testimony maybe, but *unlikely*? No.
It would be not at all shocking to lose a case like that.
geo 08.29.08 at 2:00 am
Sebastian @42: I was replying to CJ Colucci @39, who began by acknowledging that “reasonable people can disagree over the correctness of the Ledbetter decision” and then asked whether “it is fair to infer that McCain isn’t deeply concerned with the problem of the Ledbetters of the world.” You don’t think, do you, that McCain is deeply concerned about discrimination against women?
And of course I didn’t suggest you supported McCain. I said you were “sensible,” didn’t I?
John Holbo 08.29.08 at 3:20 am
“Why would you think that most of the discrimination barred by Title VII wouldn’t be discovered until some later period? You don’t really give things much thought before posting, do you?”
Sorry, Thomas, I read some commentary on it at the time and there seemed to be a general consensus – even among some conservative legal commentators – that most Title VII cases wouldn’t past muster after the Supreme Court case. That is, they were mostly longer-than-180 day cases. I don’t know whether that counts as ‘thought’ in your book or not. Would you be happier if I moderated ‘most’ to ‘a great many, including many, like Ledbetter’s, that most people seem to regard as the sort of case that should, in principle, be bringable’?
Sebastian, you are bringing rather long-shot scenarios about how Ledbetter could have bad consequences – frivolous lawsuits, drug-abusers who are fired and 18-years later, etc. etc. I think it is quite likely that McCain, too, is somewhat worried about these scenarios, but this seems to me an argument in my favor. There is no reason to think we will be flooded with frivolous lawsuits under Ledbetter, which would only return us to the procedural status quo before the Supreme decision. If people were not forever dredging up dubious 20 year-old allegations and clogging the courts before, why will they start now? There isn’t any reason to think there are tons of companies out there who fired a drug-abusing salary discriminator 18-years ago, and then hired a straight-arrow, but somehow there was no review of what the druggie did, etc. etc.. But there might be a couple that fit this specific, unfortunately description, I grant. (And even in these long-shot cases, the result of a discrimination suit a la Ledbetter hardly seems like a travesty of justice.) These are costs of Ledbetter, to be sure, but rather low costs, it would seem – unless you know better than you have suggested so far.
Now I expect you will say: but another measure would be better than Ledbetter. Yes, that is quite likely the case, because it almost always is. I can accept, for the sake of the argument, that this is so. But the perfect is the enemy of the good. That’s one thing. And it seems to me implausible that McCain opposed Ledbetter because he is a perfectionist about these things. That’s another.
Thomas 08.29.08 at 3:49 am
No, John, no, no, no. Title VII outlaws a great many things, and discrimination in pay is just one of them. So if someone is fired because of their race, for example, that’s covered by Title VII and, because the firing is clear to the individual, isn’t affected by the Ledbetter case. Sexual harassment is prohibited by Title VII, and, again, people who are sexually harassed know it and can bring a claim within the time period, so they aren’t affected by Ledbetter. It’s only in pay cases that the discriminatory treatment isn’t known at the time it occurs. (Ledbetter argued that the different circumstances entitled her to a different rule, an argument which the Supreme Court rejected.)
Thomas 08.29.08 at 3:59 am
BTW, John, the proposed Ledbetter legislation wouldn’t just take us back to the status quo ante. Rather, the removal of the statute of limitations would be expanded from the pay category to anything that affects pay, which the bill’s opponents believed, reasonably it seems to me, means everything (termination affects pay, for example). And pay is expanded to include retirement benefits, to create a new class of retiree plaintiffs. These are substantive changes. What justifies them? The fact that one woman’s lawyers screwed up and waived her claims under the EPA? Is there some evidence that there are tons of victims of discrimination out there who don’t have valid claims under the EPA but would have had valid claims under Title VII but for the Supreme Court’s decision?
John Holbo 08.29.08 at 4:15 am
Sorry, you are right, Thomas. I was unclear. What I meant to say was that the decision seems to affect wage discrimination cases that aren’t alleged sex discrimination cases – they could be wage discrimination for any of the other precluded reasons.
John Holbo 08.29.08 at 4:30 am
“These are substantive changes. What justifies them?”
A sense that the threat of a wave of retiree plaintiffs (which is very hypothetical – why should I believe in it?) does not outweigh the benefits of providing a remedy in cases like Ledbetter’s. Is there any reason to think that frivolous suits will outweigh ones with merit to the point where the measure will be counterproductive? If there is no special reason to fear a wave of frivolous lawsuits, the inference would seem to be that not much value is being placed on the prospect of remedying the likes of Ledbetter. No band aid needed, in other words.
“Is there some evidence that there are tons of victims of discrimination out there who don’t have valid claims under the EPA but would have had valid claims under Title VII but for the Supreme Court’s decision?”
I thought the answer was: plausibly, yes. (‘Ton’ is too heavy. But some.) That is, Ledbetter is not exactly a fluke confluence of circumstances (like Sebastian’s hypothetical fired druggy discriminator whose doings are not subsequently reviewed) but looks more like a template for a standard sort of case one would want to make room for. One in which you only find out about discrimination when a pattern emerges, which is something that only happens over time.
It is quite possible that I am missing some legal facts here. I am indeed not a lawyer or other sort of expert on Title VII. But I thought, from the commentary that accompanied the Supreme decision when it came down, and when the Ledbetter Act was filibustered, that this was a fairly reasonable view of the facts.
Bruce Baugh 08.29.08 at 5:17 am
“Frivolous” is in this context a pro-management term of art meaning “unwelcome to management”. A lawsuit that gave a business grounds to fire a lot of people it wanted to get rid of would not be frivolous.
Sebastian 08.29.08 at 6:34 am
“Sebastian, you are bringing rather long-shot scenarios about how Ledbetter could have bad consequences – frivolous lawsuits, drug-abusers who are fired and 18-years later, etc. etc.”
No these aren’t long-shots. I deal with cases where the company is honest-to-God 100% innocent but still has to spend hundreds of thousands of dollars defending cases that they can’t quite get out of all the time. Opening up a whole new area of those isn’t good.
john holbo 08.29.08 at 9:40 am
“No these aren’t long-shots. I deal with cases where the company is honest-to-God 100% innocent but still has to spend hundreds of thousands of dollars defending cases that they can’t quite get out of all the time. Opening up a whole new area of those isn’t good.”
It sounds like this is the basis for an argument that Title VII-style wage discrimination suits are a BAD thing. Period. That is, opening up new areas isn’t good. And, by extension, closing old areas – were that possible – would be good as well. Because, if I understand you right, you think the benefit in increased equality of pay for women is offset by the massive costs in lawsuits. This isn’t really a Ledbetter issue. You are basically giving a reason why Title VII is bad, at least one aspect of it. No? I would point out that this is pretty much the view that I speculatively attributed to McCain. Yes?
OK, I suppose you aren’t committed to saying that unequal pay for women ‘is ok’, but you sound like you are prepared to bite this bullet: the government should be ok with letting it be unequal, because the costs of doing anything about it are just NOT ok. Is this a fair gloss of your position? If you think letting these sorts of cases go forth results in crushing burdens for innocent companies, what is the alternative? Ideally?
abb1 08.29.08 at 9:46 am
Sebastian,
how can the company be innocent in your stoned-manager scenario? Suppose a stoned-manager at a sausage factory adds arsenic to the list of ingredients and immediately dies. The factory keeps producing arsenic-laced sausages, 20 years later you eat sausage and get sick.
Company’s defense is that in 20 years no one (honestly!) has noticed the problem, and it’s too late now – the actual violation happened 20 years ago. Your SOL doctrine at work. Does this really sound like a serious argument – the argument against you being allowed to bring the matter to court? Seriously now.
Thomas 08.29.08 at 12:19 pm
The threat of retiree plaintiffs is a big reason why the Democrats want to pass the Ledbetter bill, isn’t it? I mean, you do know who pays for Democratic campaigns, don’t you? People like Ledbetter already have a remedy under the EPA; there’s no need for new law to give them a remedy. The point is to create new plaintiffs and thus new sources of revenue for the party’s biggest donors. What’s strange is that creating this new source of revenue for the party’s biggest donors is something you consider a moral imperative.
Sebastian 08.29.08 at 2:38 pm
“You are basically giving a reason why Title VII is bad, at least one aspect of it. No?”
No. You are making the “Democrats oppose this anti-terrorist legislation because they claim there are other concerns in the world, therefore they don’t mind terrorism” mistake yet again.
I’m giving reasons why we have statutes of limitations in EVERY OTHER POSSIBLE CASE. The threat of frivolous and/or mistaken lawsuits becomes higher and higher when you make it harder and harder for innocent parties to defend themselves.
In EVERY OTHER POSSIBLE CASE you balance the desire to do justice for plaintiffs who are right about their case against the injustice done both in terms of reputation and in terms of money to defendants who are innocent.
In any discussion of criminal law, you would brand me a complete idiot if I made arguments which amounted to “you keep trying hide behind the Miranda warnings even when it was really just a procedural error therefore you must want robbers to go free”.
No, you talk about Miranda warnings because they are part of the balance we strike because we recognize that there are people who for whatever reason end up wrongfully accused, and it is part of how we sort out rightfully accused from wrongfully accused.
You essentially are in the position of the person who argues that if the police picked him up, he must be guilty of something so why care about procedural issues unless I ‘really’ am just concerned about setting guilty people free.
You seem to either believe that it is impossible for a company to be innocent of sexual discrimination, or that the harm of being falsely accused of it is very small.
But you won’t explicitly argue on that premise. Instead you strongly suggest that anyone who is even remotely interested in that question must want women to work for less than men.
And that is crap.
Why does Amnesty International love terrorism? Umm they don’t. They just think that claiming to fight terrorism doesn’t trump all possible concerns.
The same is true here.
Barry 08.29.08 at 5:45 pm
John Holbo 08.29.08 at 3:20 am
“Sebastian, you are bringing rather long-shot scenarios about how Ledbetter could have bad consequences – frivolous lawsuits, drug-abusers who are fired and 18-years later, etc. etc”
John, Sebastian has admitted to being a management lawer, dealing with this sort of thing. This thread is like having a global warming debate with an Exxon ‘scientist’.
geo 08.29.08 at 5:58 pm
No fair, Barry. Management lawyers are people, too.
J Thomas 08.29.08 at 6:37 pm
Sebastian, it’s hard for me to believe you still don’t get it. You aren’t stupid. The kindest interpretation I can come up with is: It’s hard to get a man to understand something when his livelihood depends on his not understanding it.
Imagine a man who gets caught stealing a woman’s purse. And the defense is “Hey, the first time I grabbed her purse was 20 years ago. I decided back then that I’d take her purse at every opportunity, I don’t remember why. So you can’t arrest me for stealing her purse this time because of the statute of limitations.”
If you have some suggested amendment to the bill that would improve it, why not propose it to your legislators? If one of your senators is a democrat you might suggest he propose it as a friendly amendment. Better if you had done that earlier but it isn’t completely too late. Would it take another round of reconciliation? The difference between a good bill and a bad one might be worth that.
But the original question was about McCain. Let’s suppose that your qualms about this bill are well-founded even though you’ve been hazy and unconvincing in your arguments for them. Is there any reason whatsoever to think that McCain has thought of those objections? I see two plausible reasons for his stand.
1. McCain is a member of the Republican establishment. He does what they want, and they don’t want equal rights. Or more precisely, they may accept equal rights in theory but they don’t want to actually have to implement it.
2. McCain is running for office and he believes his voters don’t want the appearance of equal rights. The more people want equal rights the less likely they are to vote for him anyway, so he does better to take the other side of that issue.
Do you disagree?
Sebastian 08.29.08 at 7:04 pm
“Imagine a man who gets caught stealing a woman’s purse. And the defense is “Hey, the first time I grabbed her purse was 20 years ago. I decided back then that I’d take her purse at every opportunity, I don’t remember why. So you can’t arrest me for stealing her purse this time because of the statute of limitations.—
The problem is that the corporate analogy between an intentional actor like that isn’t really very close. I’m all for corporate responsibility for actors, but you can’t impute 100% of all of the individual’s knowledge to the corporation, especially after they have ceased to work for you and especially if a long period of time has gone by.
You are *assuming* that the corporation knows that 20 years ago the manager was doing the employee wrong.
But that is the whole question. And the question will become very obscured over time. And that is why you don’t have unlimited statutes of limitations in anything.
Again, the problem with merely defining it as an ongoing act, is that making such a definition does nothing to the fact that you will very likely have to investigate really old decisions that may not be documented to 2008 levels of hyper-litigation gameplaying.
“If you have some suggested amendment to the bill that would improve it, why not propose it to your legislators?”
I did here (above and in the other thread, repeatedly) and to my Senator Barbara Boxer. What do you want from me? I don’t have magic powers.
abb1 08.29.08 at 7:18 pm
One other thing: in Ledbetter’s case there wasn’t any old big decision; instead there was a long series of tiny little decisions – each of them doesn’t amount to anything, not a violation of anything – but in the end she was being paid significantly less than every one of her male colleagues. Your SOL doctrine doesn’t address this (probably more likely) scenario of systematic discrimination at all – and the “paycheck accrual” doctrine certainly does.
Sebastian 08.29.08 at 8:56 pm
“Your SOL doctrine doesn’t address this (probably more likely) scenario of systematic discrimination at all – and the “paycheck accrual†doctrine certainly does.”
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.
Sebastian 08.29.08 at 8:58 pm
“One other thing: in Ledbetter’s case there wasn’t any old big decision; instead there was a long series of tiny little decisions – each of them doesn’t amount to anything, not a violation of anything – but in the end she was being paid significantly less than every one of her male colleagues. ”
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.
J Thomas 08.29.08 at 9:15 pm
You are assuming that the corporation knows that 20 years ago the manager was doing the employee wrong.
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.
abb1 08.29.08 at 9:22 pm
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.
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.
bianca steele 08.29.08 at 9:48 pm
There seem to be a lot of lawyers around. Division of labor means there are lots of other people involved in dealing with discrimination suits or potential suits in one way or another. We don’t see much of the others.
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.
geo 08.30.08 at 1:17 am
Sebastian: The problem is that the corporate analogy between an intentional actor like that isn’t really very close. I’m all for corporate responsibility for actors, but you can’t impute 100% of all of the individual’s knowledge to the corporation, especially after they have ceased to work for you and especially if a long period of time has gone by.
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?
geo 08.30.08 at 1:18 am
NB – First parenthesis should close after Ledbetter.
Civil Rights Lawyer 08.30.08 at 2:33 pm
Sorry I’m late to the party, but as an employee-side civil-rights lawyer, I’d just like to add some technical comments to the discussion (and these comments are technical — please skip if you’re not interested in the actual law):
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.
John Holbo 08.30.08 at 3:25 pm
Sebastian. “You seem to either believe that it is impossible for a company to be innocent of sexual discrimination, or that the harm of being falsely accused of it is very small.”
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.
Sebastian 08.30.08 at 4:19 pm
“You were offering serious arguments up until this point so I was happy to argue along”
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.
jholbo 08.30.08 at 4:47 pm
“You’ve been arguing along up to this point?”
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?
J Thomas 08.30.08 at 6:41 pm
Ledbetter is bad. It strips normal legal protections for no reason whatsoever.
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?
jholbo 08.31.08 at 1:12 am
Just in case Sebastian comes back, here is one more clarification: why haven’t I addressed his SOL points? Because I have pretty much granted them for the sake of the argument. What I have denied is that anything relevant is likely to follow from them. If that helps pin down the source of the disagreement.
Barry 08.31.08 at 5:42 pm
Looks like Sebastian isn’t billing on Sunday. Wonder if he’ll take Monday off, or get some more billable hours in then, ‘advocating’.
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.
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