Business & Practice

Unions, Ledbetter Warn of Supreme Court Implications of Election

Aug. 19, 2016, 7:36 PM

By Chris Opfer, Bloomberg BNA

Donald Trump’s power to nominate Supreme Court justices if elected to the White House is a threat to women workers, equal pay advocate Lilly Ledbetter and two union officials said Aug. 19.

Ledbetter, a former Goodyear tire plant supervisor who discovered she was making less than her male colleagues after 20 years on the job, lost her pay discrimination case in a divided 2007 Supreme Court decision. Congress later passed the Lilly Ledbetter Fair Pay Act to tweak time limits on federal pay bias claims.

“It’s very critical who we vote for in this country because it could determine our lives for years to come,” Ledbetter told reporters in a conference call. Ledbetter, AFL-CIO Secretary-Treasurer Liz Shuler and Theresa King, president of the Florida Building and Construction Trades Council, said the next president will likely have the chance to nominate at least one new high court justice.

The comments came near the same time that Trump announced the resignation of campaign chairman Paul Manafort. The GOP nominee trails Clinton by four points among registered voters nationwide, according to an Aug. 18 Pew Research Center survey.

Trump campaign representatives did not immediately respond to Bloomberg BNA’s request for comment. During an Aug. 15 campaign stop in Altoona, Pa., the GOP nominee said the next president may have the opportunity to appoint as many as five justices to the high court.

“If it’s Hillary, you’re going to have super-left-leaning judges,” Trump said at the event. “You’re going to have a country that’s destroyed probably forever.”

More Protections Sought.

The Supreme Court held in a 5-4 decision in Ledbetter v. Goodyear Tire & Rubber Co. Inc., 550 U.S. 618, (2007) that the clock beings to run on pay discrimination claims when the alleged unlawful practice occurs, even if an effected worker doesn’t yet know about it. Ledbetter has said she became aware that male managers were making more money than her several years into her job when someone left an anonymous note in her mailbox.

President Barack Obama signed the Lilly Ledbetter Fair Pay Act into law less than two years after the decision. The law amended federal pay discrimination statutes to clarify that each new paycheck issued according to a discriminatory practice is an unlawful act that restarts the time limits for filing a lawsuit.

Obama, Ledbetter and a slew of congressional Democrats have said lawmakers should also pass separate legislation designed to make it easier for workers to sue for wage discrimination. The Paycheck Fairness Act (H.R. 1619, S. 862) would protect workers from retaliation for inquiring about or sharing pay information, require employers to prove pay differences are based on a “bona fide factor other than sex” and would allow for uncapped punitive damages in cases of willful discrimination.

Republicans and the employer community largely oppose the measure. They’ve argued that it’s a boon for trial lawyers that won’t help close the pay gap between men and women workers.

Ivanka Trump said during the Republican Convention that her father would likely look at the the pay bias issue. The AFL-CIO’s Shuler blasted the GOP nominee, however, for later saying on the campaign trial that he would expect his daughter to leave her job if she was being discriminated against.

“The women that we talk to in the real world — who face discrimination every day — don’t have the option to just leave their jobs,” Shuler said. “They shouldn’t have to.”

Shuler said AFL-CIO members will be going door to door in Florida and other states to stump for Hillary Clinton.

Membership Shift Since Ledbetter Ruling

Meanwhile, Ledbetter said her case might have turned out differently if considered by a different set of judges.

Two of the justices that sided with Ledbetter in her case — John Paul Stevens and David Souter — have since retired. Souter was replaced by Sonia Sotomayor and Elena Kagan filled Stephens’s seat.

Antonin Scalia, who joined with the majority to find that Ledbetter’s claims were time barred, died in February. Merrick Garland, President Barack Obama’s pick to replace Scalia on the court, has yet to be confirmed by the Senate.

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