Earlier, the left-leaning “fact-checker” PolitiFact made the erroneous claim that the Supreme Court had barred employees from suing over pay discrimination even if they could not have learned of the discrimination in time to sue, “making it impossible for employees who learned of such discrimination later to get relief, such as back pay.” PolitiFact failed to fix the false claim, even after being informed that its claim was false by a leading law professor, Jonathan Adler, who both contacted PolitiFact last week to inform it of its false claim, and wrote about PolitiFact’s error twice at a legal web site that is regularly read by lawyers and Supreme Court justices (a web site whose legal commentary is so well-respected that its contents go into Westlaw’s news database). I also contacted PolitiFact about its error, and sent PolitiFact both court documents and language from the Supreme Court’s opinion that contradicted PolitiFact. Yet, PolitiFact has failed to fix its erroneous claims even after other lawyers and journalists pointed out the error of its claims, such as Newsweek’s Megan McArdle (at the Daily Beast) and a former Justice Department lawyer at the Heritage Foundation.
PolitiFact’s claim echoed a false claim made by President Obama in the second presidential debate in 2012, and in mailings by state Democratic Parties in October 2008. As I explain further below, this is part of a pattern of egregiously false claims and ideological bias by PolitiFact.
The Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., said that employees who want to bring a pay discrimination lawsuit under Title VII (the federal antidiscrimination law with the shortest deadline) generally have to file a complaint with the federal Equal Employment Opportunity Commission (EEOC) within 180 days of the discriminatory pay decision. But it specifically left open the possibility they could sue later on – even if they failed to file a timely EEOC complaint — if they did not discover the discrimination until later. The case involved Lilly Ledbetter, who waited more than five years after learning of a pay disparity between her and her male co-workers to file an EEOC complaint. She learned of the pay disparity by 1992, as excerpts from her deposition, filed in the Supreme Court as part of the Joint Appendix, make clear. In response to the question: “So you knew in 1992 that you were being paid less than your peers?” she answered simply, “Yes, sir.” (See Joint Appendix at pg. 233; page 123 of Ledbetter’s deposition.) But she did not file a legal complaint over it until July 1998, shortly before her retirement. Although Ledbetter delayed in filing a complaint (so long that the supervisor she accused of sexism in setting her pay died by the time her case was tried), many employees sue soon after finding out about discriminatory pay disparities. The Supreme Court specifically left open that such employees can sue, even if they learn of the discrimination more than 180 days after their pay was set, under the “discovery rule” exception to the 180-day deadline. In footnote 10 of its opinion, the Court wrote, “We have previously declined to address whether Title VII suits are amenable to a discovery rule. . . .Because Ledbetter does not argue that such a rule would change the outcome in her case, we have no occasion to address this issue.”
Politifact has ignored this language in the Supreme Court’s decision, and disregarded the fact that Ledbetter knew for years of the pay disparity she later sued over, even though I have sent its staff the relevant pages of Ledbetter’s deposition, and a link to the passage above in the Supreme Court’s decision. It has done so despite the fact that it claimed to Professor Adler that it would “review” the accuracy of its claims, and despite the fact that “it would take no more than ten minutes to read the relevant portions of the Supreme Court’s decision,” as Professor Adler noted last week. (PolitiFact’s erroneous claim occurred in a so-called “fact check” that cited the Supreme Court’s decision as one of its “sources,” and provided a hyperlink to the Supreme Court opinion that contradicted it. If PolitiFact had actually read the Supreme Court’s decision, as it claimed, it is hard to imagine that it would have made such a gross error about what the Supreme Court actually said. PolitiFact’s false claim was also contradicted by Wikipedia at the time that it made it.)
Not content to make false claims about the Supreme Court’s Ledbetter decision, PolitiFact has also made obviously false claims about the Lilly Ledbetter Fair Pay Act, which overturned the Supreme Court’s decision in Ledbetter v. Goodyear insofar as it affected pay discrimination cases. PolitiFact made a claim about that law that is obviously false if you spend five minutes reading that law. Politifact claims that law merely allows workers to sue within 180 days of “when discriminatory action was discovered.” In reality, that law allows employees to sue “decades” after discovering a discriminatory action that affected their pay, as long as they are still drawing a paycheck affecting that discriminatory action.
The supposedly “independent” PolitiFact is a project of the Tampa Bay Times, a liberal newspaper that has endorsed Obama. Far from being “independent,” PolitiFact employs highly-partisan “fact-checkers” who are infatuated with left-wing causes like the Occupy Movement. For example, one of its fact-checkers, Tom Feran, publicly endorsed Obama in 2008, and endorsed a commentary that said that conservatism is a “cancer” that is synonymous with racism and “patriarchy.” He refers to conservatives as “wingnuts” and “yahoos.” While there are plenty of things wrong with the Republican Party, PolitiFact has no excuse for its long line of blatantly false factual claims designed to help Democratic candidates.
The Tampa Bay Times is owned by the Poynter Center, which recently treated a legal commentator who helped promote the Duke Lacrosse rape hoax (and smeared innocent falsely-accused people) as an “expert” on how journalists “should cover gender issues,” and defended her false claims. Its “fact checker” PolitiFact is sometimes far from being factual: it doesn’t seem to understand the laws of supply and demand, claiming that legislation restricting the supply of energy will not necessarily increase energy prices, even legislation whose own supporters admit it will increase energy prices.
PolitiFact has made egregiously-false claims to help liberal politicians, such as PolitiFact’s erroneous claim that the Obama Administration “strengthened” welfare reform when it claimed the authority to waive the legally-unwaivable work requirements in the 1996 welfare reform law, a claim so ludicrous that when Bill Clinton made the same claim at the Democratic National Convention, even the Washington Post’s liberal fact-checker, Glenn Kessler, gave him “two pinocchios” for making this false claim peddled by PolitiFact. The Obama Administration’s action drew criticism for weakening welfare reform from welfare experts like Robert Rector, an architect of the 1996 welfare reform law; Democrat Mickey Kaus; and the editorial boards of the The Wall Street Journal (see here) and Richmond Times-Dispatch (see its four-part series here, here, here, and here).
The Lilly Ledbetter Fair Pay Act, enacted in 2009, changed the way that statutory deadlines operate for pay discrimination claims brought under the federal law that generally has the shortest and toughest deadline for bringing discrimination cases, Title VII of the Civil Rights Act of 1964. The Supreme Court’s Ledbetter decision was a 5-to-4 ruling. The five justices in the majority said that Title VII’s 180-day deadline for pay discrimination claims runs from the date that a worker’s pay is set (at least when the worker discovers the discrimination in time to sue). The four justices who dissented argued that the 180-day deadline for suing begins anew every time a worker gets a paycheck influenced by a pay decision that was allegedly discriminatory. The Ledbetter Act adopts the dissent’s position, known as the “paycheck accrual” rule, and amends Title VII’s deadline to restart the clock on the deadline each time an employee gets an affected paycheck. As Wikipedia noted, the Ledbetter “Act amends the Civil Rights Act of 1964 stating that the 180-day statute of limitations for filing an equal-pay lawsuit regarding pay discrimination resets with each new paycheck affected by that discriminatory action.” The law provides that the deadline starts running all over again “each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.” See 42 U.S.C. 2000e- 5(e)(3)(a).
Thus, it is not true, as Politifact claims, that the Ledbetter Act merely allows workers to sue within 180 days of “when discriminatory action was discovered.” Instead, it allows employees to sue “decades” after discovering a discriminatory action, as long as the action allegedly still affects their paycheck.
If Ledbetter actually had lacked knowledge of the pay disparity as a result of being deceived by her employer, she could have had the deadline extended under the Supreme Court’s doctrines of equitable tolling and estoppel, which are longstanding exceptions to the deadline that are a bit narrower than the discovery rule that the Supreme Court left undecided in the Ledbetter case. But she didn’t allege that any of these common-sense exceptions to the deadline applied to her case.
(The “paycheck accrual” rule that the Ledbetter Act applies to Title VII of the Civil Rights Act arguably already applied to another law that Ledbetter neglected to press her claim under, the Equal Pay Act (EPA), which has a longer deadline for suing. The EPA only deals with pay discrimination claims, which is relevant because workers sometimes discover pay discrimination years after the fact, meaning that deadlines perhaps should be more lenient under laws that only deal with pay discrimination. But workers discover other acts that affect paychecks — like promotions or demotions — immediately, so it may make sense to interpret the Title VII statute, which covers all kinds of discrimination (like discriminatory promotions), as having the statutory deadline run from the date of the employer’s decision, rather than from the later date that the worker’s most recent paycheck is received).