THE CRANKY OLD MAN
Random thoughts and stuff from a cranky old man. Humor (maybe), satire, and some politics, mostly stuff from a confused head.
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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
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
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
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."
Theemployer 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 groupswant 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.