The Lilly Ledbetter Chickens Come Home To Roost

Lilly Ledbetter still lives! Not the actual human person Lilly Ledbetter (although she too still lives), but the ostensible victim of pay discrimination who became the symbol of all things good and virtuous about the victorious Democrats in 2008 when, in 2009, the first bill President Obama signed into law was the Lilly Ledbetter Fair Pay Act. As a symbol, LL not only lives but soars: she was just inducted into the National Women’s Hall of Fame; and a few days ago Karen Finney, former spokeswoman and communications director at the Democratic National Committee, used the passage of the “fair pay act” named in her honor to attack “the war on American women currently being waged in Republican-controlled legislatures around the country.”

Never mind that the act itself was in most respects a fraud. If you think that characterization too strong, take a look at the extensive commentary by the National Journal’s Stuart Taylor and the Competitive Enterprise Institute’s Hans Bader, many of whose excellent discussions of that act are listed here. Read any — or better yet, all — of those linked pieces for an introduction to the misrepresentations in the legislation and the commentary about it, since I’m not going to summarize here.

“What I do want to do here,” if I may begin by quoting myself from my post two years ago, Ledbetter v. Goodyear Tire and Rubber: Where The Rubber Meets The Road, Or … Bring On The Unintended Consequences!,

and most emphatically, is to call attention to a BIG SURPRISE that may be in store for the Obamanauts who are now celebrating doing away, in effect, with the time limitations on filing pay discrimination complaints. I wish I had thought of this looming unintended consequence myself, but I didn’t. I’m indebted for it to Michael Rosman, General Counsel of the Center for Individual Rights, whose email to me I quote with permission:

Hi John. Now that President Obama has signed the Ledbetter bill into law, it might be an appropriate time to remind the readers of your blog that you do not need to be a minority or a woman to take advantage of its provisions. Specifically, anyone who was harmed in the 1970′s or 1980′s (or later) by a race-conscious affirmative action program can sue for damages if that person is still receiving a check (paycheck or pension) from the same employer that somehow reflects the injury.

Given all the public and private employees (and now retirees) who have been injured since the late 1960s by the preferential treatment given to others because of their race, sex, or ethnicity, I suspect the Obamanauts may not be altogether pleased by the flood of litigation their folly may produce.

Now the flood may have begun. Today Michael Rosman wrote a follow-up to his earlier note:

Yesterday, the Seventh Circuit decided Groesch v. City of Springfield. The court found that the Ledbetter Act revived the claims of three white policemen with the City of Springfield who claim that the City’s passage of a special ordinance favoring an African American police officer (permitting that officer, unlike the white plaintiffs, to retain credit for years of service after resigning and subsequently seeking reinstatement) violated Title VII and the Equal Protection Clause. I’ll let you read the decision for yourself, but it appears to permit those white police officers to seek backpay and other possible damages back to 2003. (It would have been even further back had the officers not sought relief in state court before filing a federal lawsuit.) The court only reached the question of timeliness, and did not address the merits of the plaintiffs’ claims.

Yet another example of unintended consequences, huh?

First, thanks to Michael and CIR for standing watch and guard on issues like this. I’ve read the opinion, and I encourage readers here to read it as well. It certainly does appear that the three white policemen who appear to have been victims of what is euphemistically referred to as “reverse discrimination” (there is, of course, nothing “reverse” about it; it’s just discrimination) can thank Lilly Ledbetter and the Democrats who fawned over her for being allowed back into court.

As for unintended consequences, I’ve just had occasion to note in another but similar connection that

I’ve often thought that the English language needs a pithy word (even an un-pithy one would do) to describe a consequence of one’s action that is “unwanted,” unintended, but nevertheless not only entirely predictable but that was actually predicted.

Since Michael Rosman actually and accurately predicted that the Lilly Ledbetter Fair Pay Act would provide unintended, unwanted assistance to victims of racial preference like the three white policemen in Groesch, perhaps in situations like this we should speak of Rosmanded rather than unintended consequences.

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