Lilly Ledbetter and Diana Levine: Living with the Heartbreak of SCOTUS

By Rickey Gard Diamond

In its November 2008 issue, Vermont Woman reported on Diana Winn Levine of Marshfield and her Supreme Court case against the pharmaceutical company, Wyeth Corporation. The Vermont musician’s loss of her hand and arm from gangrene, which developed when a physician’s assistant improperly administered an anti-nausea drug for her migraines, focused national attention on drug safety. Many feared Levine would not win because of several earlier, narrowly-decided Supreme Court cases, including the much-publicized case of [Lilly] Ledbetter v. Goodyear Corporation.

The Supreme Court had ruled in favor of Goodyear and against its former employee, Ledbetter, in a May 2007 ruling. The 5-to-4 decision upheld an earlier statute of limitations requiring that pay discrimination lawsuits must be filed within 180 days of the first discriminatory paycheck. Ledbetter, however, who had received discriminatory pay for years and only learned about it just before retirement, didn’t give up. She became a public advocate for equal pay for women and successfully lobbied Congress to pass the Lilly Ledbetter Fair Pay Act. The act, which President Obama signed into law in January 2009, strengthens the rights of women and minorities in particular by resetting the 180-day clock with every new discriminatory paycheck.

Meanwhile, Levine’s story ended happily, too. Her case’s Supreme Court win in March of 2009 marked a victory not only for herself and for Vermont tort law but for U.S. drug safety. The court decision ruled that drug companies are not immune to lawsuits such as Levine’s even if, as Wyeth had argued, the Federal Drug Administration (FDA) had already approved their drugs and labeling.

On October 17, 2009 Ledbetter will come to the Vermont Technical College in Randolph Center to speak at the 13th Annual Women’s Economic Opportunity Conference. Contributing Editor Rickey Gard Diamond invited Levine to be part of a phone interview with Ledbetter earlier this month. Says Gard Diamond, to share a conversation with “two such powerful women was exciting – and fun.”

I asked the two women if they’d noticed how much alike they look. Both are slim, great-looking older blondes, a little Barbie-looking, you’re tempted to think. But in temperament, both are bulldogs, in fact.

I said I couldn’t help wondering if Goodyear’s and Wyeth’s CEOs had mistakenly believed all those “dumb blonde” jokes. Both women laughed, though their cases had cost each years of their lives.

Ledbetter talks in a lilting Alabama voice that barks beautifully. By the time we had heard the details of her SCOTUS story, Levine and I felt easy agreement with what she told us a good friend of hers had said: “Goodyear Corporation didn’t know you as well as I do, or they’d never have decided to fight you.”

Though Levine’s case against Wyeth Corporation was very different from Ledbetter’s against Goodyear Corporation, both women experienced injustices that added insult to injury and transformed them into unlikely but determined activists.

The sting of the SCOTUS ruling against Ledbetter still made my face a livid red. Chief Justice John Roberts and Associate Justice Samuel Alito gave the opinion of a narrow court majority whose decision was purely statutory, and seemed to ignore the real injustice the case revealed. Ledbetter had worked for Goodyear nearly two decades before discovering she was substantially underpaid.

But the same decision moved Justice Ruth Bader Ginsberg to read the dissenting opinion from the bench, a rare practice reserved for strong disagreement. She was joined by Justices John Paul Stevens, David H. Souter, and Stephen G. Breyer. “In our view,” Bader Ginsberg asserted, “the Court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination.” Ginsberg argued that discrimination occurs in small increments over large periods of time and is often difficult to recognize until more than 180 days after a pay-change decision. She called the Court’s “cramped” interpretation “incompatible” with the broad remedial purpose of the Civil Rights statute.

In 2008, I’d heard Ledbetter talk to Ann Corcoran of Radio SRQ at the National Organization for Women conference, where Ledbetter had been named that year’s Woman of Courage. In that interview, Ledbetter explained how she’d come to be hired at Goodyear. She hadn’t just fallen off the turnip truck; she was working as a district supervisor for H&R Block when she read about Goodyear in Business Week. Radial tires seemed the future, Goodyear’s management policies sounded enlightened, and her homework on the company looked promising.

Ledbetter was hired to supervise the radial division’s night shift at a largely male-populated plant of several acres’ size in 1979. Whatever she needed to do, however dirty or difficult the job, she did it, and often she drew overtime. “I enjoyed my work,” she told Levine and me.

It must have shown. In 1996 she was awarded the plant’s Top Performance Award. She was selected as one of four supervisors to revamp production; she considered it an honor and said she enjoyed her working relationships.

Not that the Gadsden, Alabama, tire and rubber plant was an easy place for any woman to work. Ledbetter was the only woman supervisor. She credits two “great mentors along the way,” both of whom left before her troubles began.

When a new supervisor solicited sexual favors, Ledbetter complained, and the supervisor got transferred. Afterward, though, especially when she went so far as to file a charge with the federal Equal Employment Opportunity Commission (EEOC) she was treated “like scum,” as she put it.

“No communications. No instructions. It was just like I had a contagious disease. If you talked to me, you were in danger. You might get fired if you were seen with me. That’s retaliation,” she told Levine and me, naming the change in her working environment. Goodyear next moved her into early retirement, economically punishing her.

Yet Ledbetter must also have won someone’s respect. On the phone, she told us she still doesn’t know who it was – male or female, a unionized employee she’d supervised, or another manager in the plant – but someone laid an anonymous note on her desk. When Levine asked what the note looked like, Ledbetter said it listed in pencil the wages of four male peers, one hired only the year before. All were paid substantially more money than she.

“I Was Shocked”

Ledbetter told us about that moment: “I was under the assumption I was fairly paid. We had government contracts. We were filling them right and left in the division where I was a supervisor. And I thought, to be a government contractor, you have to adhere to all of the federal guidelines and regulations.” But comparing her pay with her lowest-paid peer, over 19 years, she’d been shorted more than $500,000.

Her husband, already retired, was recovering from serious cancer surgery. “When I came home and explained to my husband what I’d found out, I said, ‘I want you to understand that if I file this charge with EEOC, we’ll be in this for a minimum of eight years. It takes a long time because of the appeals and scheduling. These cases are not a quick fix.’

“And he said, ‘Well, what time do you want to leave?’ We drove to Birmingham my first day off, and we filed the charge.”

Calling herself “very fortunate,” Ledbetter said, “I got an EEOC interviewer who dug into the nitty-gritty. Any individual is very embarrassed to go in and say, ‘I’m a manager, but they’re not treating me fair.’ You have a whole list of things you hold back, because it’s embarrassing when a company has used you and discriminated against you in this day and age.” She was told she had one of the best-documented cases they had ever seen. They advised her to get a lawyer.

She and her new attorney would first offer to settle with Goodyear out of court. “This is not something I wanted them to give me,” she protested. “I earned this pay. I was entitled to it under the law!” Goodyear refused to settle for the $60,000 she offered.

Ledbetter called her family together to talk. For the next several years, her two adult children would take turns going with her to court. “It didn’t do either one of my kids any good, but they supported me. I feel really good about that. Along the way they heard me talk and speak, and [they] learned what they need to do in their lives so they don’t end up short-changed, like I am.”

It was hard to hear Ledbetter say, like so many older women I have interviewed over the years, that she’d come up short on money. For the rest of her life, Ledbetter will have to live on significantly lower Social Security payments and a smaller pension than her male peers. Benefits get paid only on the basis of earnings – whether the pay level is inequitable, or, as in Ledbetter’s case, illegal.

Last year Ledbetter’s son Phillip told reporters who were covering her visit to Paris, “This started out personal for her, but now she is standing up for other women – including my sister Vickie and my two-year-old daughter Grace.” As Ledbetter told us on the phone, she had never been politically-minded before this. Now she says her objective, as she travels the country – the world – is to educate young women.

“I had no idea. That’s what has been the most astonishing to me: how far behind we still are. Title VII of the [1964] Civil Rights Act and the Equal Pay Act of 1963 have been in place for almost 50 years! A lot of young women believe their pay is no problem because they know about these laws. Girls in college and high school believe, ‘Oh, we’ve already got [equal pay].’ I spoke in Colorado last week to 500 people, and there were four or five tables of these young women, and they literally came up crying, thanking me for the eye-opener.”

Ledbetter added philosophically about her own growing knowledge, “It’s been an education.”

“I had never lived anywhere but in the South, and I initially thought, this is all an old-white-southern-boy problem, but I learned very quickly that pay discrimination is national, that it’s throughout the whole country, and at all levels. In the medical field, in universities where women have doctorates and are not paid equally. I’ve also learned this is international. I’ve been invited to come speak all over the world. I was in Rome to get an award and learned women there are a step behind us. I’ve spoken to groups in Japan and Chile and France, and done a radio interview for the BBC. This problem of pay discrimination against women and minorities is worldwide.”

Ledbetter’s problems with pay equity were compounded. Though she won her initial case in Alabama – the jury awarded her $3.3 million – the jury and even her judge were not aware of a little-publicized federal law that “capped” any award. It was part of Republican “tort reform,” which had played a role in Levine’s case and is heard now in the health care debate. Ledbetter’s $3.3 million got adjusted down to $300,000.

The Alabama jury’s award, much like the Vermont jury’s award to Levine, had included damages for mean-spirited bullying (this writer’s words, not the jury’s). Huge corporations have Goliath-sized law departments. Levine and Ledbetter both came to realize that corporate interests were using their cases to convey punishing public messages.

Said Ledbetter, “I think they wanted to make an example of me and humiliate me, and to scare others away from pursuing their rights under the law.”

Levine added, “Until [Wyeth Corporation] appealed it to the U.S. Supreme Court, I didn’t really understand my case was being used as an example to change the law. When that dawned on me – when I realized the drug companies wanted any FDA-approved drug to be free of any fault or responsibility, whatever happened to me or anyone who used their drugs – that was the moment I knew there was no turning back. I had to fight, win or lose.”

Just as Levine’s win was a victory for any American being treated with drugs, Ledbetter’s original loss signaled trouble for any American worker – but especially women and minorities. That’s why Ledbetter’s persistence, doing what she did next, is so inspiring.

Ledbetter’s No Quitter

Ledbetter told us only some of her $300,000 award from the Alabama District Court was for wage-discrimination. According to federal law, she said, any award for past wages can only go back two years, not for the full time of employment. She said corporations and their legal firms, and some politicians, spread disinformation about lawsuits like hers; they threaten the risk of business bankruptcy unless more restrictions are put on individual rights. But as often happens, half of such an award as hers would be used to pay lawyers. Ledbetter pointed out she would have to pay income taxes on the two years’ worth of back-wages she was awarded. She had already paid out thousands of her own dollars, traveling for court business and lining up testimony.

But much as Wyeth had done with Levine, Goodyear appealed Ledbetter’s win to a higher court, interested in setting legal precedent. Ledbetter told us she had since learned the U.S. Court of Appeals for the Eleventh Circuit, where Goodyear took the case in 1997, is widely considered the most conservative appeal court in the nation. They overturned the lower court’s verdict. Ledbetter was back at square one.

It was then she appealed it to the U.S. Supreme Court. Chief Justice Roberts publicly chastised Ledbetter and her lawyer for lumping four grievances together. She had hoped to win on wage-discrimination, too, but as Ledbetter told Levine and me, she and her lawyer had not done this combining of her four separate cases; the Alabama district judge had, deciding not to waste precious court time.

Ledbetter had a “clear case,” the first judge had told Goodyear, recommending they settle on at least the one item “beyond a shadow of a doubt,” wage discrimination. The judge had chosen to combine them.

After Ledbetter lost the Supreme Court case, Goodyear sent her a bill for $3965, their printing costs for the case. Levine and I gasped. “They wanted you to pay them money?” asked Levine before adding, “That is so low.” Ledbetter said she didn’t pay it. She sent their letter to the media, and a copy to a law school; she hasn’t heard from Goodyear since. Hearing this, I promised myself never to buy another tire from the company.

But Ledbetter did better than that. She went to Congress.

With the help of the National Women’s Law Center and the American Association of University Women (AAUW), she began to lobby for a new legislative act to make sure the original intents of the 1964 Civil Rights Acts Title VII and the Equal Pay Act were preserved. As Lisa Maatz, then director of government relations at AAUW put it, the bill closed “loopholes the size of Mack trucks that have developed since the Equal Pay Act was passed in 1963.” On January 29, 2009, a newly elected President, who had first backed the bill as a Senator, Barack Obama, signed his first bill, the Lilly Ledbetter Fair Pay Act. It essentially brought us back to where we were before.

I told Ledbetter about a legal column in Manufacturing Matters I’d read about the act named for her. Attorney Lou DiLorenzo warned manufacturers the “new” act is “not the kind of legislation employers need,” and that corporations should plan “strategies” carefully, listing such possibilities as paying bonuses instead of giving raises, or writing handbooks that shorten the statute on limitations. (Read the column at www.employmentlawalliance.com/en/node/2654.)

Ledbetter had no patience for this, interrupting me – or rather she interrupted DiLorenzo. Her southern belle persona charged, unleashed. “Those are scare tactics!” she accused him.

“The Lilly Ledbetter Act [restores it to] the same law it has been since 1963 – it has never caused the problems they warn about. All these people, running up and down the streets, hollerin’ about all this government paperwork. Well, if corporations are following federal guidelines, there is nothing additional they have to do. It is what they should have been doing all along.

“I loved the Wall Street Journal article, the day after my case was presented,” Ledbetter continued. “It said this ought to encourage employers to look at their process and procedures to ensure people are treated fairly. Then they won’t have nothin’ to worry about. But if they’re breaking the law, then they got something to worry about!”

It seemed fair and just to Levine and me.

Stay Tuned

Ledbetter is working on a book this year, and she continues to stay in touch with Congress. “The next thing we need is paycheck fairness,” she told us. “That’s the bill that passed the House last year, but it didn’t get through the Senate. Congresswoman Rosa DeLaura (D-CT) will now sponsor it in the House, and we can’t let it get lost or forgotten. Had we had that bill at the time of my case, it would have helped me.”

A paycheck fairness act would prevent corporations from keeping wages secret. “It would allow me to ask about my pay level,” Ledbetter said. “It would have protected me from retaliation. It would allow anyone to talk with their co-workers about their pay levels.”

The proposed bill provides education and training for employers who err out of ignorance. For those who violate the law because they can, the bill would make inequity a little harder. Employers who pay women less than men for doing the same work now only need argue they rely on “a factor other than sex,” and courts take them at their word. Under the proposed act, employers who claim this would need to demonstrate pay practices are actually related to job performance.

The bill also reinstates the Equal Opportunity Survey – suspended by the Bush administration – which requires federal contractors, like Goodyear, to submit data on employment practices, such as hiring, promotions, terminations, and pay. Ledbetter referred to federal contractor data in her own case. (You can locate and learn more about the proposed bill at www.govtrack.us/congress/bill.xpd?bill=h110-1338/.)

After our conversation, it was clear to Levine and me that Lilly Ledbetter is far from finished with her public life. Her next stop: Randolph Center, Vermont, where she’ll deliver the keynote address at the Women’s Economic Opportunity Conference, sponsored by Vermont Senator Patrick Leahy, with whom Ledbetter became well-acquainted over the course of her Capitol Hill testimony.

In honor of Ledbetter’s visit to the Green Mountain State, Levine shared with us that she’s writing a song for the occasion – to which Ledbetter responded, “Good! I can use a song!”

Can’t we all. See you there!

Contributing Editor Rickey Gard Diamond lives and writes in Montpelier. She’s a professor of Liberal Studies at Union Institute & University and the author of the novel Second Sight. Her blog, Gaia and Eros: Economics for the Planet and Passionate People, at www.gaiaeros.com, helps vent her spleen.