Pay Discrimination Bill Becomes Law

Ever have a boss who was impossible to deal with? Okay, that's a rhetorical question. There's no question that in general employers can and will treat employees in an unfair, arbitrary, stingy, and irrational manner. We have first-hand knowledge of hard-working, conscientious employees who got a raw deal. Sometimes the unfairness rises to the level of illegal discrimination, but often--for better or worse--it doesn't. Falling short of an actual labor-law violation never justifies an employer's bad acts, but it just means that there is no remedy to be found in the courthouse. At the same time, let's face it; there are employees who are clearly working the system, at the expense of those workers legitimately wronged.

Today, the president signed a bill known as the Lilly Ledbetter Fair Pay Act of 2009--a huge bonanza to the trial lawyers and a recordkeeping nightmare for employers--that overrules a May 2007 U.S. Supreme Court ruling that said that workers had to file equal pay lawsuits within 180 days. Ledbetter, the plaintiff/appellant in that case, worked at Goodyear's Gadsden, Alabama, plant from 1979 until 1998 when she took early retirement.

Under this newly signed legislation which the Obama's Congressional allies fast tracked to the president's desk, each new allegedly discriminatory paycheck extends the statute of limitations for a second 180 days. In other words, the measure will make it easier for workers to file claims for pay bias. But as a practical matter, extending the deadline seems to undermine the whole idea of having a statue of limitations of any kind. The full text of the bill can be found here.

If a particular legal deadline is legitimately unfair to workers who are really harmed (rather than just based on political posturing), why not consider some flexibility if it makes sense? But is this new law based on a faulty premise?

Karen Lee Torre suggests in the Connecticut Law Tribune that Lilly Ledbetter herself--who palled around with Obama on the campaign trail--appears to lack "clean hands," as they say in legal jargon:

As a plaintiff-side employment litigator, I am expected to join the chorus championing a congressional override of the U.S. Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co. The bill is a political scam. If Congress wants to amend Title VII and greatly expand the statute of limitations for employment discrimination claims, it is certainly within its authority to do that, the wisdom of it aside. But supporters of the Ledbetter bill have engaged in dishonest rhetoric in portraying her as a victim of both her employer and the Supreme Court justices who affirmed the Eleventh Circuit’s dismissal of her claims as time-barred….

I have represented many sex discrimination victims. I have won their cases. After 20 years of such efforts, I know a victim when I see one. Let me tell you something: Lilly Ledbetter is no victim...

Ledbetter waited until she retired to sue Goodyear for “discrimination” she allegedly suffered 12 years earlier. Goodyear, like many employers, awarded salary increases based on annual performance reviews. Ledbetter’s supervisor at the time of the alleged discrimination did not think much of her performance and she did not get a raise. (Nor did Ledbetter get a raise in the last two years of her employment – for the same reasons of weak performance, but notably she did not claim those decisions were discriminatory).

While she was working, Ledbetter never complained, filed no grievance, and Goodyear never knew that she thought that particular performance review was the product of gender bias. Way more than a decade later, after Ledbetter walked out the door with her retirement benefits, she hit Goodyear with a lawsuit, the basis of which was the claim that the initial poor reviews affected her salary for the rest of her tenure...

Here’s another fact ignored in the political rhetoric. Ledbetter, for unexplained reasons, abandoned an Equal Pay Act claim asserted in her suit. The Equal Pay Act does not contain Title VII’s filing limitations, nor does it require plaintiffs to prove intent. It was a much better claim, easier to prove, and it was timely.

The bill even allows family members and others "affected by application of a discriminatory compensation decision or other practice" to file claims, which could really open the floodgates.

Writing for the majority in the Ledbetter decision, Justice Alito cited various precedents in observing that:

Statutes of limitations serve a policy of repose...They “represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that ‘the right to be free of stale claims in time comes to prevail over the right to prosecute them.’” The EEOC filing deadline “protect[s] employers from the burden of defending claims arising from employment decisions that are long past....” Certainly, the 180-day EEOC charging deadline...is short by any measure, but “[b]y choosing what are obviously quite short deadlines, Congress clearly intended to encourage the prompt processing of all charges of employment discrimination...." This short deadline reflects Congress’ strong preference for the prompt resolution of employment discrimination allegations through voluntary conciliation and cooperation.

This bill, which amends Title VII of the U.S. Civil Rights Act, is the first piece of legislation signed by the new president, who was elected in part to straighten out the country's financial mess. We're not carrying water for management, but with a bad economy, high unemployment, and many companies teetering on the brink, should we really be subjecting more of them to never-ending litigation?

Update: Writing in the National Journal, Stuart Taylor says that the new law "seem likely to make it harder than ever for employers to defend themselves against bogus (as well as valid) discrimination claims, effectively adding to the cost of each new hire. This would be justified if job discrimination were indeed pervasive." Taylor's take on the law can be found here. And Hans Bader of OpenMarket.org describes the distorted media coverage of the Supreme Court decision.

Loopholes?

On Thursday, January 22, Pres. Obama signed several executive orders signaling an apparent change in policy for the war on terror, at least as most of the media is portraying it. The president signed an order shutting down the Guantanamo Bay detainee center supposedly within one year, and also acted to close all overseas CIA terrorist detention facilities, and ban harsh interrogation methods in favor of what is provided in the Army Field Manual. The president created a special task force to spend the next six months reviewing interrogation techniques. The new administration already has suspended detainee trials at Gitmo for 120 days pending a review of the military tribunals. The full text of these executive orders can be found here.

But is there more, and less, to all this? The Associated Press notes that...

A task force will study whether other interrogation guidelines — beyond what's spelled out in the Army manual — are necessary for intelligence professionals in dealing with terror suspects. But an Obama administration official said that provision should not be considered a loophole that will allow controversial "enhanced interrogation techniques" to be re-introduced. The official spoke on condition of anonymity to speak candidly about the administration's thinking.

Back in November, the Wall Street Journal reported the following: "Upon review, Mr. Obama may decide he wants to keep the road open in certain cases for the CIA to use techniques not approved by the military, but with much greater oversight."

If these measures are based on sound public policy--good. If it is merely symbolism to curry favor with certain constituency groups and media opinion leaders, not so good. Keeping America safe should guide the administration's decisions, not symbolism or media hype.

As far as Gitmo is concerned, complicating matters is that no country has agreed to take these detainees off our hands, so the logistics of the shutdown--if at all--have yet to be worked out. And again, not everyone swept off the battlefield and jailed there is an innocent victim of circumstance. The day after Obama signed off on the executive order, the Associated Press reported the following:

A released Guantanamo Bay terror detainee has reemerged as an al-Qaida commander in Yemen, highlighting the dilemma facing President Barack Obama in shaping plans to close the detention facility and decide the fates of U.S. captives. A U.S. counterterror official confirmed Friday that Said Ali al-Shihri, who was jailed in Guantanamo for six years after his capture in Pakistan, has resurfaced as a leader of a Yemeni branch of al-Qaida.

And the AFP is reporting that two former Gitmo inmates have appeared in a video posted on a jihadist website.

Yet media coverage of all things Obama continues to be fawning. In a sense, this is consistent, since since Obama's candidacy was largely media created and driven. Given the events of the election cycle and the subsequent inaugural hoopla, has there even been a politician with such an extremely thin resume that benefited from this degree of unabashed media cheerleading? Former CBS newsman Bernard Goldberg, who just came out with a new book on this subject, said in an interview that "In my whole life I have never seen the media get on board for one candidate the way they did this time around and -- this is very important -- they did it without even a hint of embarrassment...The media who were on Obama's team, they didn't just put a thumb on the scale; this time they sat on the scale." A similar critique of media behavior is expressed here.

It is not a positive step for our democracy when the press engages in a wholly one-sided presentation. No candidate for high office, regardless of political party or ideology, should ever get a free ride. To suggest that the mainstream news media kept its objectivity and impartiality in the election campaign and its aftermath is like saying the referees in pro wrestling are on the level. But as someone said, in the 2008 election cycle, the Fourth Estate went into foreclosure, and not just because of the ongoing financial difficulties in America's newsrooms.

The former president received (and continues to receive) far different treatment in the press to say the least. And as the media postmortems of the Bush administration continue, it might be useful to review this 2006 special report from the Media Research Center about the mainstream media's war on terror coverage. Whether you agree or not with its premise, the report raises a host of interesting issues.

Oddly enough, apparently the Bush and Obama administrations have found some common ground on one contentious national security issue:

The Obama administration fell in line with the Bush administration Thursday when it urged a federal judge to set aside a ruling in a closely watched spy case weighing whether a U.S. president may bypass Congress and establish a program of eavesdropping on Americans without warrants. In a filing in San Francisco federal court, President Barack Obama adopted the same position as his predecessor. With just hours left in office, President George W. Bush late Monday asked U.S. District Judge Vaughn Walker to stay enforcement of an important Jan. 5 ruling admitting key evidence into the case.

UPDATE: The Washington Times reported this "exclusive" on Wednesday, January 28:

President Obama's executive order closing CIA "black sites" contains a little-noticed exception that allows the spy agency to continue to operate temporary detention facilities abroad. The provision illustrates that the president's order to shutter foreign-based prisons, known as black sites, is not airtight and that the Central Intelligence Agency still has options if it wants to hold terrorist suspects for several days at a time. Current and former U.S. officials, who spoke on the condition that they aren't identified because of the sensitivity of the subject, said such temporary facilities around the world will remain open, giving the administration the opportunity to seize and hold assumed terrorists.

New Homeland Security Leadership

Janet Napolitano, the former Arizona governor, was sworn in as the new Homeland Security Secretary on January 21. The new administration's homeland security strategy can be found here. Given Napolitano's prior record on border security, it remains to be seen what policies will actually go into implementation. Bloomberg provided this account of her January 15 confirmation hearing.

Homeland Security and the Inaugural

Homeland Security Chief Michael Chertoff told CNN that Tuesday's presidential inauguration is the "largest and most complex security event in history."

An estimated 8,000 police officers will be on duty, along with almost a thousand FBI personnel, Transportation Security Administration screeners and others, including 10,000 National Guard troops. Chertoff said that another 20,000 members of the National Guard are being held in reserve.

Numerous press reports indicate that the Obama inauguration will be the most expensive in history predicted to reach over $150 million, far more than the $42.3 million spent on George Bush's inauguration in 2005, and the $33m spent on Bill Clinton's in 1993. In fact, President Bush has put the District of Columbia under a state of emergency to allow it access more federal money for inauguration-related security and transportation costs. Let's hope everything goes smoothly, but with the economy in the tank and workers losing their jobs right and left, does it at all seem like the amount of cash spent on inaugural activities and parties (whether the source is the public or private sector) is excessive? Four years ago, some lawmakers and various mainstream media outlets felt that the Bush inaugural was money not well spent. But apparently that was then, and this is now.

Despite the bleak economy, however, Democrats who called on President George W. Bush to be frugal four years ago are issuing no such demands now that an inaugural weekend of rock concerts and star-studded parties has begun....Four years later, the nation is still at war. Unemployment has risen sharply. And Obama pressed Congress to release the second half of a $700 billion bailout package in hopes of rescuing a faltering banking industry.

A history professor who has studied presidential inaugurations says "The Founding Fathers wanted very much for it to be a dignified occasion and to avoid any smack of royalty or coronation, but it's gradually become more lavish. People think whatever goes on now goes way back, but there's nothing permanent about it."

FISA Court Validates Warrantless Surveillance

The Bush vindication tour continues, according to this story from The New York Times published on January 15th, although the timing of the court decision seems, well, interesting:

A federal intelligence court, in a rare public opinion, issued a major ruling validating the power of the president and Congress to wiretap international phone calls and intercept e-mail messages without a specific court order, even when Americans’ private communications may be involved.

The court decision, made in August 2008 by the Foreign Intelligence Surveillance Court of Review, came in an unclassified, redacted form.

The decision marks the first time since the disclosure of the National Security Agency’s warrantless eavesdropping program three years ago that an appellate court has addressed the constitutionality of the federal government’s wiretapping powers. In validating the government’s wide authority to collect foreign intelligence, it may offer legal credence to the Bush administration’s repeated assertions that the president has the power to act without specific court approval in ordering national security eavesdropping that may involve Americans.

The full text of the opinion can be found here.

The World's Newest Country

Independent journalist Michael Totten has a fascinating piece on the Wall Street Journal website about Kosovo, the pro-American, pro-Israel, Muslim-majority nation on the Balkan peninsula.

Gitmo Recidivists

Campaign rhetoric and the facts on the ground can be entirely different, as reported by the Associated Press and other news outlets:

Terror suspects who have been held but released from Guantanamo Bay are increasingly returning to the fight against the United States and its allies, the Pentagon said Tuesday. Sixty-one detainees released from the U.S. Navy base prison in Cuba are believed to have rejoined the fight, said Pentagon spokesman Geoff Morrell, citing data from December. That's up from 37 as of March 2008, he said. The new figures come as President-elect Barack Obama prepares to issue an executive order during his first week in office to close the controversial prison. It's unlikely, however, that the Guantanamo detention facility will be closed anytime soon as Obama weighs what to do with the estimated 250 al-Qaida, Taliban or other foreign fighter suspects still there.

The Outgoing Administration's Terrorism Prevention Record

Although this narrative won't be found in most mainstream media accounts, Peter Brooks, a Heritage Foundation colleague of Niles Gardiner, offers up a similar assessment of the the soon-to-be ex-president's national security accomplishments:

It's not just by chance that there hasn't been another terrorist strike here at home since the 9/11 attacks at the World Trade Center, the Pentagon and in the skies over Pennsylvania - more than seven years ago now. While far from perfect in execution, the Bush administration pulled out the stops in fighting terror at home and abroad, which, prior to 9/11, had been considered by many to be little more than a law enforcement problem.

Since 2001, the government has thwarted a number of plots, including conspiracies to blow up airplanes and fuel farms, assault an army base, and attack Los Angeles and Chicago skyscrapers - and surely others.

Obama Talks Homeland Security

Some interesting nuggets in relation to homeland security during Obama's ABC News interview yesterday. According to the president-elect, homeland security occupies the top slot in the administration's priority list:

When I set up the hierarchy of things that I've got to do, my number one priority every single day that I wake up is how do I make sure that the American people are safe. We've got an outstanding person in Janet Napolitano who's going to be heading up our homeland security department. She is already in deep consultation with the other members of my national security team and we are going to have to stay vigilant and that's something that doesn't change from administration to administration.

In what must be a major disappointment to his most devoted followers, Obama indicated that his Justice Department appointees probably won't be prosecuting Bush administration officials for so-called "crimes" such as torture and warrantless wiretapping:

We have not made final decisions, but my instinct is for us to focus on how do we make sure that moving forward we are doing the right thing. That doesn't mean that if somebody has blatantly broken the law, that they are above the law. But my orientation's going to be to move forward.

In conceding that Guantanamo prison won't be closed in the first 100 days of the administration, the president-elect has also apparently discovered that the issue is a lot more complicated than it appeared on the campaign trail:

It is more difficult than I think a lot of people realize and we are going to get it done but part of the challenge that you have is that you have a bunch of folks that have been detained, many of whom who may be very dangerous who have not been put on trial or have not gone through some adjudication....I think it's going to take some time and our legal teams are working in consultation with our national security apparatus as we speak to help design exactly what we need to do.

Separately, according to GovernmentExecutive.com, the incoming administration's top counterterrorism official said the new team would in some ways "be more aggressive" in fighting international terrorism than the Bush administration. "Counterterrorism coordinator Dell Dailey said he did not mean the Obama administration would do more to try to kill terrorists, but would be more aggressive in building partnerships with other nations."

The Law's Moral Void

In law, procedure is king. In other words, successfully prosecuting a lawsuit means meeting the required deadlines, filing the proper papers in order in accordance with the official practice book, alleging the appropriate boilerplate facts with the proper citations, and so on.

Failing to follow these technicalities can be fatal to any legal action regardless of the actual substance of the complaint. Fordham University Law Professor Thane Rosenbaum argues in his book The Myth of Moral Justice that our system of justice is too caught up in these proprietary rituals and formalities: "It exists within a vast labyrinthine maze of bureaucratic an technical procedures, fed by an inexhaustible supply of lifeless statutes and precedent-affirming cases, choked by all those court records, docket numbers, and written forms."

Because of the DMV-like bureaucracy, he maintains among other things in his book that the legal system lacks a moral core because it is far too removed from satisfying basic human emotions and needs. The law is at least (sometimes) effective at protecting the body, but the human spirit receives no legal protection, he says.

We don't buy everything in the book by any means, but he does argue persuasively that the law is emotionally indifferent to the actual grievances of the parties to a legal dispute, and that money damages and imprisonment, the "bread and butter of the law," are by themselves insufficient redress. With so many cases resolved out of court or after a pre-trial conference (and it was our experience that judges tend to pressure the lawyers to settle), or through a procedure-based written summary judgment motion, the litigants simply never receive an opportunity to vent in a public setting. Since many if not all lawsuits contain a strong emotional component, even the winner doesn't "believe the case is all over and the issues are all settled."

While it is impractical or inappropriate to remake the courthouse into a group-hug therapy center or a daytime talk show, it is fair to say that many litigants often find themselves figuratively (or sometimes literally) gavelled out of order before they get a full chance to express themselves. Rosenbaum writes that the law has "no tolerance for the emotional complexity of those who muster the courage to enter the courtroom, with all of their consolidated ambitions and repressed rage, wounded egos, petty jealousies and perennial rivalries, competitive fires and thwarted dreams."

Rosenbaum also explains that facts, as we know them in the real world, have a wholly different definition inside the courtroom: "Facts don't have to be true. The need just need to be found and applied to the law. Facts are artifacts of the justice system, while truths are trademarks of the moral universe. Fact is a legal term; truth is a moral one." He goes on to say that,

Indeed what passes for justice in America is often immoral justice--a resolution that make sense legally and can be explained and justified by judges, lawyers, and law professors simply by conforming, in a very narrow formalistic sense, to precedent and procedure, but ultimately feels emotionally and morally work to everyone else. Justice that doesn't feel just, but instead feels like a colossal misnomer.

We would all agree that the court system requires some rules framework by which to achieve peaceful conflict resolution. That notwithstanding, Rosenbaum has clearly articulated the problem, although the system might not be as entirely bleak as he makes out. His solution? A new (and somewhat vague) paradigm in which in which the court system provides "a forum in which to express our stories of hurts and grievances--uninterrupted, unredacted, indulging whatever emotional releases and excesses accompany our words."

That magnitude of reform is unlikely--and impractical--for a variety of reasons, but again, Rosenbaum's general critique of the legal system is well founded.

Border Security Goes South

The deteriorating situation at the southern border is one of the items in the new president's crowded inbox. As the Washington Times reports,

Add another pressing challenge to President-elect Barack Obama's growing to-do list - tamping down a dramatic rise in violence and corruption that has overwhelmed the U.S.-Mexico border and spread an escalating turf fight between warring drug cartels into the United States. Near-daily shootouts and ambushes along the southwestern border pose a serious threat, according to separate government reports, which predict a rise in "deadly force" against law enforcement officers, first responders and U.S. border residents. Even President Bush...warned that Mr. Obama faced a looming war with drug cartels where "the front line of the fight will be Mexico." He said the new president will need to deal "with these drug cartels in our own neighborhoods." Homeland Security Secretary Michael Chertoff said the agency has begun to make progress against "the criminals and thugs" operating along the U.S.-Mexico border, but "we are beginning to see more violence in some border communities and against our Border Patrol agents as these traffickers ... seek to protect their turf."

New Year's--And Eve

Over New Year's, we had a chance to watch for the first time All About Eve, the 1950 melodrama written and directed by Joseph L. Mankiewicz that many critics and film buffs regard as one of the finest movies of all time. It won six Oscars, including Best Picture. The film revolves around a wannabe actress (today we might call her a groupie or perhaps a stalker!) played by Anne Baxter who schemes and manipulates her way to theatrical fame and fortune. The film is also acknowledged as rescuing the then-fading career of Bette Davis who plays an aging actress--another example of art imitating life, or vice versa. (A young Marilyn Monroe even shows up in a couple of scenes playing another wannabe.) A contemporary movie with a similar plot would be far more (if not excessively) more explicit, but the film holds up because of its movie's most compelling feature--the sharp, powerful dialogue. As IMDB notes, "Davis' line 'Fasten your seatbelts, it's going to be a bumpy night' is legendary, but, in fact, all of the film's dialog sparkles with equal brilliance."

What does this have to do with homeland security? Well, on the DVD commentary track, the director's son reveals that Mankiewicz vigorously opposed the blacklist while the head of the Director's Guild of America and particularly disgreed with a mandatory loyalty oath for guild members that Cecil B. DeMille and others sought to impose. According to his son, Mankiewicz fought the blacklist as a matter of principle because he felt that every American had the right to believe what they wanted to believe. But ironically, after things settled down and the battle against the loyalty oath was won, Mankiewicz suggested that his fellow directors voluntarily sign a loyalty oath to show their good faith. His colleagues were outraged, and the proposal never went anywhere. But in his son's words, Mankiewicz was a "super patriot." Today, we would perhaps consider him a strong advocate of unfettered free speech.

[As an aside, this reminds us to a lesser extent of a situation when we worked in management for a corporation that found itself in the middle of a union organizing drive. We got a lot of static from the executive suite for refusing to try to talk employees out of voting yes to the union. Privately, we opposed the union effort for several reasons, but felt strongly that the employees should make up their own minds either way, and let majority rule.]

Hollywood has produced a number of movies in the past couples of years critical of both the Iraq war and the war on terror, all of which failed miserably at the box office. A production company with the necessary resources can make any movie it wants, of course, regardless of how ill advised. That's the magic of the marketplace. We're not talking about making a "pro war" movie as a counterpoint. The term "pro war" is very unsettling if not distasteful, especially for those serving in uniform. That is to say, no reasonable person is pro war, but for the sake of balance (and perhaps even making money), wouldn't it be advisable for the so-called dream factory to slip in a few, non-preachy, pro-victory--for want of a better term--movies every so often? Many people who opposed the Iraq war on the merits still want the U.S. to win there (and in the overall struggle against terror), and fortunately it appears post-surge Iraq on its way to that goal. To take it a step further, since the Hollywood community has at least rhetorically (and with their checkbooks) signed what amounts to a loyalty oath to the incoming administration, will movies that are more supportive of U.S. counter-terrorism initiatives suddenly get the green light? Are there any super patriots in Hollywood?

One View From Europe

There are many legitimate criticisms of the Bush administration's domestic and foreign policies (excluding the tedious Bush bashing from Hollywood and the music industry). Mistakes were made, as the bureaucrats like to say. To compound its problems, the administration's communications program has also been mysteriously lame. But writing in the London Telegraph, Niles Gardiner of the Heritage Foundation offers a different take on the Bush legacy:

There has not been a single terrorist attack on U.S. soil since 9/11, and for all the global condemnation of pre-emptive strikes, Guantanamo and the use of rendition against terror suspects, the fact remains that Bush's aggressive strategy actually worked.

As Gardiner suggests, history may view the Bush presidency a lot different than the way it is currently portrayed in a very hostile media, both here and abroad. Gardiner concedes that some of the criticism is fair game, but "much of the condemnation of his policies though is driven by a venomous hatred of Bush's personality and leadership style, rather than an objective assessment of his achievements."