Pun­dits and politi­cians who oppose the Pres­i­dent this year like to mock Pres­i­dent Obama’s record. In fact, com­mon wis­dom has it that Repub­li­cans wanted the Pres­i­den­tial elec­tion to be a ref­er­en­dum on Pres­i­dent Obama rather than a choice between him and his Repub­li­can oppo­nent. Putting aside some of the inten­tional mis­rep­re­sen­ta­tion of that record, what can we say about what the Pres­i­dent has been doing? It would be worth­while to dis­cuss the things Pres­i­dent Obama has done, in a series of arti­cles lead­ing up to the election.

Let’s start at the begin­ning. The very first bill that Pres­i­dent Obama signed into law, on Jan­u­ary 29, 2009, was the Lilly Led­bet­ter Fair Pay Act. The bill was named after a woman who retired from Goodyear Tire and Rub­ber Com­pany in 1998, who then sued her for­mer employer for hav­ing paid her less, through­out her career, than her male coun­ter­parts. Unfor­tu­nately, the statute of lim­i­ta­tions had expired on her claim; accord­ing to what was then the cur­rent law, a claimant had to allege dis­crim­i­na­tion within 180 days of its occur­rence. Ms. Led­bet­ter had been hired many years pre­vi­ously, and the dis­crim­i­na­tion had been ongo­ing for many bad years — since 1979 — with­out legal action.

Some­how, that made it okay. The Supreme Court said so.

The case as brought to the Supreme Court didn’t deal with con­sti­tu­tional issues, but with the inter­pre­ta­tion of fed­eral law. Led­bet­ter alleged that her sit­u­a­tion was one in which “dis­parate pay is received dur­ing the statu­tory lim­i­ta­tions period, but is the result of inten­tion­ally dis­crim­i­na­tory pay deci­sions that occurred out­side the lim­i­ta­tions period.” The major­ity deci­sion said Led­bet­ter “could have, and should have, sued” at the time the ini­tial dis­crim­i­na­tory pay deci­sions were made.

The prob­lem with this is that most employ­ers dis­cour­age employ­ees from dis­cussing their pay with other employ­ees. In fact, many employ­ers — Goodyear included — will actu­ally fire employ­ees who dis­cuss their pay with other employ­ees. It is there­fore extremely dif­fi­cult for an employee to dis­cover (let alone prove) that he or she has been the vic­tim of pay dis­crim­i­na­tion. In this case, it would have been impos­si­ble for Led­bet­ter to uncover the sex­ual dis­crim­i­na­tion in Goodyear’s pay scales with­out los­ing her job, until after she no longer held her job.

Ms. Led­bet­ter filed suit under Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963. The orig­i­nal case was decided in her favor, but Goodyear appealed. The Eleventh Cir­cuit Court reversed that rul­ing, and Ms. Led­bet­ter brought the case to the Supreme Court. She lost.

The deci­sion by the court seemed to make a mock­ery of these civil rights laws, by admit­ting they have no teeth if the cor­po­ra­tion which vio­lates them can effec­tively hide the vio­la­tion for a length of time beyond a 180-​​day statute of lim­i­ta­tions. The idea behind a statute of lim­i­ta­tions is that after a cer­tain length of time (which varies by the crime), a vio­la­tion of the law is either very hard to prove, or is no longer rel­e­vant, or was some­thing (as in cases like this) where the aggrieved party had been con­sent­ing to the arrange­ment and per­haps brought suit for rea­sons unre­lated to the unfair­ness that the law was intended to prevent.

Jus­tice Ruth Bader Gins­burg wrote a scathing dis­sent to the major­ity opin­ion, in which she was joined by Jus­tices John Stevens, David Souter, and Stephen Breyer. She argued that pay dis­crim­i­na­tion often occurs in small incre­ments over long stretches of time, and is not obvi­ous until long after the statute of lim­i­ta­tions has expired. Fur­ther, she noted (as I did above) that cor­po­ra­tions make it very dif­fi­cult for pay dis­crim­i­na­tion to be dis­cov­ered, by exact­ing penal­ties when employ­ees dis­cuss or reveal their pay.

The major­ity opin­ion, deny­ing any relief for Led­bet­ter, was writ­ten by Jus­tice Samuel Alito. He was joined by Jus­tices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Chief Jus­tice John Roberts. The deci­sion did not pre­vent suits under other laws, like the Equal Pay Act, which has a three-​​year dead­line for most sex dis­crim­i­na­tion claims, or 42 U.S.C. 1981 (“Equal Rights Under the Law”), which has a four-​​year dead­line for suing over race discrimination.

In 2007, the House of Rep­re­sen­ta­tives passed a bill to cor­rect this prob­lem. The pro­posed law would count each pay­check as a new instance of dis­crim­i­na­tion, and would reset the clock for the 180-​​day statute of lim­i­ta­tions each time an employee is payed. Thus, a claimant would only have to file a law­suit within 180 days of the last pay­check. The bill died in the Sen­ate, because it failed to pass a clo­ture vote forced by Sen­ate Repub­li­cans. Dur­ing the 2008 pres­i­den­tial cam­paign, John McCain pub­licly opposed the bill, and Barack Obama pub­licly sup­ported it. This was one of the many issues dis­cussed dur­ing the cam­paign, and it was brought up dur­ing the pres­i­den­tial debates.

A new ver­sion of the bill was pro­posed in the 111^th Con­gress. It passed the Senate’s clo­ture motion. It was signed by Pres­i­dent Obama nine days after his inauguration.

This step to com­bat gen­der dis­crim­i­na­tion in the work­place may not win Pres­i­dent Obama many votes in his 2012 reëlec­tion cam­paign, mostly because a) it was signed almost four years ago (Amer­i­can vot­ers have short mem­o­ries), and b) it is a rel­a­tively obscure bit of civil rights law.  It is, how­ever, an indi­ca­tion of where the heart of this Pres­i­dent lies — and where the intent of the Repub­li­can Party rests in their oppo­si­tion to it. (See: war on women.)

Any list of the accom­plish­ments of Pres­i­dent Obama must include men­tion of his sup­port for, and sign­ing of, the Lilly Led­bet­ter Fair Pay Act of 2009. It is now legal to bring suit for pay dis­crim­i­na­tion within 180 days of any dis­crim­i­na­tory pay­check — not just the first such pay­check — because of Pres­i­dent Obama. It is one way he has led bet­ter, and but one exam­ple of why he deserves to have a good year.

Related arti­cles

• Fair pay advo­cate Lilly Led­bet­ter still has plenty to fight for (kansasc​ity​.com)
• John Fos­ter Way: Unfair pay vio­lates women’s civil rights (nor​wich​bul​letin​.com)
• Led­bet­ter: A lot of work to be done for pay equal­ity (wvgazette​.com)
• Lilly Led­bet­ter to head­line Eco­nomic Sum­mit for Women (bizjour​nals​.com)
• Lilly Led­bet­ter: Paul Ryan scares me to death (raw​story​.com)
• Ok, swing vot­ers, here are your porn star endorse­ments for November’s pres­i­den­tial race [Inter­est­ing] (fark​.com)
• Woman’s Right To Vote (pro​pre​sobama​.org)