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Monday, November 12, 2012




I recently received a comment from my brother on my post “Cranky’s Thoughts On The Election”.  My brother offers a unique point of view on the politics of social issues and how laws that are created to resolve an injustice can have unintentional consequences.  When reading this I thought how if my brother ever ran for office, these comments would probably be cherry picked to portray him as a misogynist.  

My brother is a graduate of Williams College (with Honors) and Harvard Law School (with Honors).  He recently retired from his position of Federal Magistrate Judge in Atlanta.  He is as fair and honest as any person I know.  I am unaware of his actual political affiliation.  My guess is he is a Republican with a heart.   




Enjoyed your comments on the election, and I think you are right on - -we will survive no matter who won, and the winner will move toward the middle. If the pols don't get it and refuse to compromise they ought to all be fired.


When will the Republicans learn that most social issues are over? There are the evangelical Christians in the Midwest and elsewhere who believe abortion is murder and not protesting it is akin to Germans not pushing back against Hitler when he was killing Jews. You have to respect that point of view, but it has got to stop being a political issue. Both sides need to respect the deeply personal decisions that folks on the other side have made.


Georgia is like New Jersey, except it has been known here for a year that Romney would win. Lot of unemployment here and dissatisfaction with Obama's partisan leadership (I know both sides contributed to it, but he is the Prez with a lot of power and the Prez needs to lead). Anyway we got little attention from the candidates.  Probably a blessing.  But as you said we play by the Electoral College, which was originally structured to get small states into the union or to go along - - on a pure popular vote Wyoming, for instance would be totally irrelevant.  So for the same reason Wyoming has the same number of senators as California, we have the Electoral College - - why should the small states give up their sovereignty to become irrelevant?  


A bonus of the Electoral College - - imagine if the votes were close nationally and we had to have a manual count of every state's votes.


But the real reason I wanted to respond was your comments about equal pay for women. I cannot believe this is still an issue.  As you said there are laws mandating equal pay (in fact two, the Civil Rights Act of 1991 prohibits any employment discrimination based on gender and the Equal Pay Act does the same - -why two laws - - politics) and if a woman is being paid less her job is protected if she complains (any negative repercussions create a separate law suit for retaliation) and if she wins she gets back pay, compensatory damages (for hurt feelings etc.) punitive damages, and the loser has to pay her attorney (on the other hand if she loses she doesn't have to pay her employer's attys. fees).


In the suit the female employee need only point to one man who was (or is) getting paid more than she and that puts the burden on the employer to show a legitimate nondiscriminatory reason for the difference in pay. If the employer does that, the employee is entitled to put on evidence that the reason was pretextual (i.e. bs). A jury then decides whether, in that case, the disparate pay was based on discrimination or a good reason.


Thus it is not really supply and demand that will eliminate gender pay discrimination, but existing laws.


I saw probably 100 or so of these cases when I was on the bench. Most were brought after the woman was retired, or fired, or demoted. She would then go to a lawyer and he would add a disparate pay claim to a discriminatory discharge (or other claim) and ask the employer to provide all pay records of all employees so he can find a difference in pay. And for every difference the employer has to explain (show documentary history of better reviews, show more education, experience, sales results etc.) This is costly and employers often settle for less than the cost of the litigation - -just a business decision.


In one of the debates Obama claimed the fact that he signed the Lilly Ledbetter bill was evidence of his sensitivity to this issue. Romney did not point out that it was passed by a Republican house and that there was little if no opposition to it. It was opposed by most business groups, but no way a politician could oppose it and avoid being branded male chauvinist pig.


What the bill did was revive pay discrimination claims that were very old and could not be defended. Lilly Ledbetter (the claimant) left her employment for reasons I forget and then claimed that all the time she was there (20+years) she had been paid less than comparable males.


The Supreme Court held that a 4 year statute of limitations applied and as a result Lilly could not recover for alleged discriminatory pay that occurred more than 4 years before her suit was filed.


The “Lilly Ledbetter bill” reversed this decision and said the 4 year statute of limitations did not begin to run until Lilly learned of the pay differential. Guess what? She said she did not learn of it until after she had retired or been fired or whatever. Hard to prove otherwise (how does an employer know when Lilly got actual knowledge of a fact, that is something only Lilly knows), but even harder to defend a 20 year plus old claim. How is the employer going to be able to explain wage differences: first, how is the employer going to be able to explain the differences in the jobs held by Lilly and her male comparator 20 years ago - - records are probably nonexistent, supervisors may be retired and moved or dead. 

Second, for the same reasons, even if the complainant and her comparator male employ performed the same job functions, how can an employer prove the second defense, that the difference in pay 20 years ago was based on performance differences. In short, the employer will be faced with evidence of a difference in pay without any testimony or records to explain the decision made long ago."
The employer is probably left with Lilly pointing to different pay and no one or evidence around to explain why the pay was different.


Further clarification from my brother in a later email: On the pay issue, of course there was and still is some discrimination. Most of the cases where it is clear get settled (when an employer truly discriminated, his atty will advise that it would be cheaper to pay up ASAP rather than try the case and incur attorney's fees as well as lose). On the Court, I saw only the cases where the employer had a defense so that could skew my view of how many of these cases are without merit.


Anyway, I do not understand what spokeswomen for women's interest groups  want when they complain about unequal pay - -Congress can't do anything more than what it has done (should we make it illegal a 3rd time.)


I sure hope the day comes when we stop categorizing everything as a race, gender or age issue and try to pull together.



  1. "I sure hope the day comes when we stop categorizing everything as a race, gender or age issue and try to pull together."

    This sums it up nicely. There are already plenty of laws already on the books to right almost every "wrong" a person is likely to encounter. Yet we don't feel lke we're "doing anthing" unless we draft and debate and pass something new.

    We need to wise up and put ideology (not principles) on the shelf and work together to get things done.

    Good post.


  2. All your rhetoric still does not put equal pay for women where it belongs, in the workplace, in the factory, behind the counter, even in the high rise office. There's a lot of pulling together to be done and this isn't a problem women can shoulder alone.

  3. Your brother is, indeed, a smart man!

  4. Are you categorizing LGBT as gender?
    Or is that an entirely different issue?

    In any event, as long as we look for differences it will be difficult to pull together
    When we see the similarities we're on the same page

  5. An interesting read. Maybe instead of making something illegal three times we should do better job of enforcing the laws we have.

  6. My vote is for a "big brother cranky blog!" Excellent explanation for a perceived injustice. Great post!

  7. Stephen said what I was thinking.
    Laws are lovely, but they have to be enforced and be seen to be enforced before anyone really bothers to follow them.

  8. Having a decent eye day so I stopped in to see what you were up to. I have to agree with your brother. Just saying. As a women it drives me nuts that women bitch so much about equal pay. I understand it is a sensitive issue for many a women, but as I worked my butt off from the time I was 13 till a couple of years ago when I could no longer work I can say that I personally never ran across this issue. I just worked for what I was paid. I think many times if women would just shut their mouths a little and work instead of spending so much time whining they would soon find that they are getting promoted just as quickly as the men. At least that was my experience. Never worked a job where I wasn't promoted within 3 months of starting.

  9. "I sure hope the day comes when we stop categorizing everything as a race, gender or age issue and try to pull together." I also think this sums it up very well.

  10. Very much agree with your brother on this issue.