What This Election Is Really All About

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The problem is that this discrimination had gone on unbeknown to Ledbetter for many years. Because Goodyear, like most companies, had a strict policy against employees sharing compensation information with one another, she didn’t even know she was being grossly underpaid (compared to male employees doing the same job) until somebody finally tipped her off 1998.

So where does John McCain fit into all of this? Well, Ledbetter sued. And in the trial court, she won a jury verdict based on a finding that she had been the victim of illegal gender-based pay discrimination. But the case went to the Supreme Court of the United States and on May 29, 2007, that Court ruled that Ledbetter couldn’t sue because the initial decision to discriminate against her had been made in 1980 (or so) and she had failed to file a complaint with the EEOC within 180 days after that decision had first been made. The more recent deficient paychecks were only the product of a discriminatory decision made years earlier, not the result of discrete acts of discrimination recently committed, the Court concluded.

Congress acted immediately to overturn the Supreme Court decision and by July 31, 2007, the House of Representatives had passed a bill saying that an unlawful employment practice occurs every time a paycheck is issued in an amount which is based on an illegal employment decision, regardless of when the original discriminatory decision was made. But when the bill got to the Senate, McCain opposed it.

McCain’s reason for opposing the Lilly Ledbetter Fair Pay Act was that he thinks that illegal gender discrimination by corporations is the women’s fault, not the companies’: “they [female employees] need education and training,” he explained, rather than the right to sue to get back wages denied them by the unlawful acts committed against them. The problem with the legislation, McCain explained, was that it would “open us up to lawsuits,” which would be bad for corporations seeking to increase their profits by underpaying women, or tolerating discrimination against them, at all events. “This is government playing a much, much greater role in the business of a private enterprise system,” he explained.

Of course, if gender pay discrimination were not epidemic, there wouldn’t be many lawsuits at all. But as Senator McCain knows, pay inequality between men and women is great and growing. As recently as 2006, the wages paid to women were only 76.5% on average of that paid to men for equivalent jobs, according to the United States Department of Labor and the Institute for Women’s Policy Research. By opposing the Act because it would spawn too much litigation, McCain was acknowledging that illegal pay discrimination is widespread. But he thinks the thing to do about it is not to allow it to be remedied in court, but to train and educate women so they can demand higher wages, offsetting the loss from gender pay disparity.

Blaming women for being victims of illicit pay discrimination (which is the inescapable premise of McCain’s suggestion that “education and training” of women is the solution to the problem) is reminiscent of his assertion that people facing foreclosure because they were duped into taking on unaffordable mortgages by unscrupulous lenders are the real culprits and have nobody to blame but themselves. Moreover, it is flat wrong. And it is condescending and patronizing to suggest “education and training” are all that is necessary to overcome illegal corporate greed and malevolence, cloaked from discovery by a culture of secrecy and immunized from redress by judicial (and in McCain’s case, legislative) duplicity.

By insisting that government not interfere with “the business of a private enterprise system” by giving victims of discrimination an opportunity to rectify in court illegal acts perpetrated against them, McCain betrays a commitment to corporate interests that overrides any concern for the plight of average working people or disquietude about folks being treated unfairly in the workplace.

Finally, and perhaps even more importantly, there is something of monumental significance in the fact that the opinion in the Ledbetter case was authored by Justice Samuel Alito. There is no question among legal scholars that if Sandra Day O’Connor had still been on the Court, the 5-4 decision in Ledbetter would have gone the other way. Justice O’Connor was no liberal, but she did understand gender discrimination, having been a victim of it herself. Justice Alito was Sandra Day O’Connor’s replacement on the Court. How cruel it was that he authored the opinion which disavowed the principles Justice O’Connor embraced so staunchly and held so dear.

Justice Alito was enthusiastically supported for that position by Senator John McCain, who has frequently promised that Justice Alito (and Chief Justice Roberts) are exactly the kind of judges he will appoint to the Supreme Court if he is elected president of the United States.

That circumstance, in and of itself, should be sufficient reason to reject McCain’s quest to be president. Fifty or 100 more years of Iraq and tax cuts for the super-rich (by making Bush’s tax cuts for millionaires permanent, as McCain wants to do) are one thing, but 50 more years of Alitos and Robertses and Scalias and Thomases, may be more than this country and our constitution and our democracy can survive and endure.

But at all events, McCain’s disdain for the Lilly Ledbetters of this world and his dismissive, let-them-eat-cake (“train and educate” victims of discrimination) proposal as the means to eradicate unlawful gender bias reveal a philosophy which should repel all Americans who seek once and for all to rid the workplace, and, indeed, the entirety of society, of the effects of its most pernicious yet persistent scourge – discrimination in any form against anyone anywhere.

Gerry Birnberg
Chair, Harris County Democratic Party
April 28, 2008

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