Grace and Grit

by Lilly Ledbetter

  I remembered how angry Eddie had become that last year when I’d questioned him about my treatment and later my transfer. Eddie had never forgiven me for enduring so long when he believed I didn’t belong there in the first place, and as Goodyear’s efforts to get rid of me once and for all escalated those last two years, Eddie had gladly helped deliver the last blows.

  In the following testimony my attorneys brought up many issues surrounding the Top Performance Award and questioned why I received a merit award if I was such a poor performer. Eric, who had given me the award, struggled to explain this. In a faltering voice he surmised why the original documents to support my poor ranking were missing: They were thrown away because everyone thought the plant was closing and the offices were cleaned out to sell the furnishings. But why, then, were the only copies salvaged from the discarded file cabinets the ones supporting Goodyear’s side?

  Not only that. How twisted, then, was it for Eric to award me the largest raise I’d received since the merit-based program was enacted when I was such a bad employee? To answer that, Eric began by saying that I was a hard worker and dependable, and I worked well with people. His tone changed abruptly, as if he realized he’d made a mistake by telling the truth, and he started talking about my performance not being up to standards.

  Strangely, Eric’s memory began to fail him, and he couldn’t recall what he’d told me when he gave me the award. But his words just didn’t add up. I had an unimpressive record, yet he awarded me raises three years in a row, adding the Top Performance Award the last year, not for superior performance but “to make sure Lilly was not at the bottom of the pay range or under the minimum.”

  The men’s salaries, supposedly, didn’t come into play at all; the raise was strictly because I was below the minimum.

  “All right,” Mike continued. “Then let me ask you this: If it didn’t have anything to do with the men’s salaries, but it had to do strictly with the fact that she was below the minimum, why did you lie to her and tell her it was because of her performance? Why didn’t you just tell her, it’s because you’re below the minimum?”

  “I can’t recall. You know, maybe I did. Maybe I didn’t. I can’t recall what I told Mrs. Ledbetter. You have my deposition.”

  “You just can’t admit that this lady was never paid like the men because you still work at the company.”

  “No, sir.”

  “And you didn’t think it was right.”

  “No, sir.”

  “But you couldn’t tell her that, because if you told her the real reason, you’d be admitting that Goodyear had not been paying this woman what she deserved.”

  The minute Mike made that statement, my state of awareness heightened. The courtroom became very still, interrupted only by Eric’s exasperated “No, sir. That’s not correct.”

  Judge Clemon interjected, “Well, are you saying that she was being paid what she deserved?”

  “Sir, with her job rate, there’s a maximum and a minimum. Okay. It’s my responsibility to keep anyone working in my area above the minimum, and that’s what I was doing. And I—”

  “So she was being paid below the minimum?” Judge Clemon asked, his voice vibrating across the room.

  “Sir, the only thing I can tell you is, I thought the right thing to do was to make sure I raised Lilly Ledbetter’s salary. And I violated that Top Performance Award policy to make certain that I increased her salary, but I still think that was the right thing to do. And that’s the only thing I can tell you.”

  When Eric finished, the defense rested its case.

  Leaving the courtroom, I looked everyone standing in that hallway in the eye. In my mind, it was clear that Goodyear never called any of the workers under my supervision to testify that I was a bad manager because I’d treated them fairly all those years, they knew I’d done a good job, and they weren’t willing to lie.

  I tossed and turned all night, my empty stomach growling. I had barely eaten all week.

  THE CLOSING arguments were short, thirty minutes total for both lawyers on each side.

  Jon spoke first. Why didn’t Goodyear call any witnesses to rebut what I said? Where was the witness to deny the remarks about “the drunk and the damn woman”? This wasn’t the only hidden evidence, he stated emphatically; the hard-core data, as we’d seen, was nowhere to be found. It existed in February 1998, right before I filed the EEOC charge, and disappeared shortly thereafter. Where were the union workers on my shift to say that I was a poor manager? Why was I chosen to start up the radial light-truck division if I was such a bad employee?

  When Jon sat down, I was grateful for everything he had done for me over the previous four years. We’d developed a close friendship, and I viewed him as family. I knew that no matter what the verdict was, Jon would always be an important part of my life.

  THEN MR. KENT, the younger defense lawyer, took his turn. He repeated that I was not involuntarily transferred due to my age or gender, or as retaliation. He maintained that I wasn’t paid the same simply because I wasn’t as good a manager as the others.

  Up next, Mr. St. Clair began his speech by talking about driving to the courthouse that very morning and passing a construction crew on the highway, a typically male job until recently. Then he went on about sometimes you might see a woman flagging traffic and a man running the jackhammer, and the next day they might switch positions. He carried on about how women have to pull their own weight when they take jobs traditionally held by men. I was baffled by his analogy and glanced at the jury to see their expressions. He then focused on the time line for awarding damages, which confused me, so it had to have confused the jury.

  When Mike began talking, he corrected the time line, pointed out that Goodyear was responsible for my deteriorating mental state, reiterated that I had been involuntarily transferred, and asserted that it was ridiculous to believe I’d be happy lifting Hummer tires. As for the differences in salary, that was a result of the “good old boy” mentality.

  The closing arguments finalized, Judge Clemon gave the jury instructions about their deliberations. He informed them that they couldn’t be influenced by sympathy or prejudice. They should consider only the evidence but could make reasonable deductions. They also needed to disregard anything he said during the trial concerning the facts because they were the only judges of the facts. He went into great detail about how to decide whether to believe a witness, outlining questions to ask themselves about each one. He talked about the plaintiff’s responsibility to prove each of the claims by a “preponderance of evidence,” also known as the “burden of proof” or “burden of persuasion.” Unlike a criminal case, where there has to be proof beyond a reasonable doubt, a civil case requires a sufficient amount of evidence that the claim is more likely true than not true.

  After he discussed each of my claims and the laws associated with them, he explained that compensatory damages should restore a plaintiff to the same position the individual would be in if he hadn’t been discriminated or retaliated against. This number shouldn’t be based on guesswork but should be limited to actual damages: in my case the lost wages and benefits beginning six months from the day I filed charges, if the jury found that my employment would have continued to that day or another date on which the jury determined my employment would have lawfully ended. Compensatory damages also covered emotional and mental anguish arising from sex discrimination and weren’t restricted to actual losses. Punitive damages were different. They were meant to punish and discourage a corporation from acting in such a manner again. They were awarded when sex discrimination and retaliation were done with malice and reckless indifference to my federally protected rights. The jury needed to consider how egregious was the wrong, what my financial resources were, and what relationship the punitive damages have to the compensatory damages.

  Under my age-discrimination claim, I was entitled to what is called liquidated damages if the jury found that Goodyear had willfully violated the Age Discrimination Act.
The liquidated damages would be twice the amount of back pay.

  Once Judge Clemon finished explaining the meaning of damages, he instructed the jury to go to the jury room. Now there was nothing left to do but wait for them to decide who was telling the truth.

  THAT NIGHT I again slept fitfully. I was called to the courtroom late the following morning, the fourth and final day of the trial. The trial had lasted only three days, when I’d expected it to last at least a couple of weeks. When the jury filed into the courtroom, no one looked in my direction. Here I was, almost twenty-five years after starting at Goodyear, having stuck my neck out as far as it could go, waiting to hear the verdict on each of the four claims I’d filed against the company I’d called home for so long.

  After the jury settled in their chairs, the foreman stood. I pressed my lips together and felt the raw skin on my bottom lip where I’d been gnawing on it without realizing it during the entire trial. I looked down at my black loafers.

  As I waited to hear the verdicts, I felt the nervous flush making its way across my face. Hard to believe that all this brouhaha had started out with one tiny anonymous note tucked into my cubby five years earlier. When I opened it and saw those scrawled numbers and realized I’d been denied the same money as my male equals, by 40 percent no less, I knew in an instant that there was nothing to do but fight. And now I was about to find out either that it had all been worth it or that the boys from Goodyear had pulled off yet another discriminatory feat, keeping their boys’ club intact.

  Judge Clemon asked the jury if they’d reached a verdict. The jury foreman said they had. Judge Clemon then stated, “The court will receive the verdict,” and the foreman handed the verdict to the courtroom clerk, who took it to Judge Clemon, who started to read it silently, flipping each page. He stopped at one page, and I heard Mike whisper to Jon as he grabbed his arm, “We lost.” Judge Clemon continued flipping until he reached the last page, where apparently the damages were listed.

  Finally he began to read the verdict. To the first charge of being transferred against my will from area manager to technology engineer my last year because I was a woman, the foreman answered, “No.” My stomach drew up in a knot.

  Then the foreman said no to the second claim that I’d been transferred because of my age. I spread my fingers as far out as they would go and held them frozen that way, as if to distract myself. I didn’t dare turn and look at Jon and Mike.

  I tensed to hear the third claim and held my breath, not letting myself think about the previous four years of sleepless nights, worrying and wondering how it would all end. I’d always imagined that when I retired, Charles and I would be playing with the grandchildren and going on church trips. I’d thought I had the best years of my life ahead of me. I had no idea I’d spend my retirement battling the place where I’d spent most of my working life, with the simple hope of building a more comfortable lifestyle for my children than I’d had. When I heard the foreman read, “Do you find it more likely than not that the defendant paid plaintiff an unequal salary because of her sex?” I heard the answer “Yes,” and I finally took a breath. I whispered to myself, “Thank you, God,” and almost didn’t hear the answer “No” to the fourth claim of being transferred as retaliation for complaining about being discriminated against.

  The next thing I heard was “To what amount of back pay is the plaintiff entitled?”

  “$328,597.93.”

  “To what amount of damages is plaintiff entitled on her disparate salary claim?”

  “$223,776.”

  “To what amount of damages is plaintiff entitled for mental anguish?”

  “$4,662.”

  “What amount of punitive damages, if any, do you award?”

  “$3,285,979.”

  When I heard the amount, over $3 million, I was flabbergasted. I couldn’t have been more shocked than if I’d been sitting on an airplane and the top of the plane peeled off to reveal blue sky. Then I was elated, and so deeply thankful that the jury got it.

  In those first moments of hearing the jury’s verdict, something unclenched inside of me. Believing that all my worries were over and even that the women working at Goodyear and other places would be safe from being harassed and underpaid, I felt a lightness in spirit that I hadn’t felt in a very long time.

  * The theory of employer liability under which employers are liable for discrimination where lower-level supervisors with discriminatory motives influence adverse employment decisions made by higher-level managers, thereby greatly increasing employer accountability for the actions and recommendations of lower-level supervisors.

  * Equal Pay Act: http://​www.eeoc.gov/​policy/​epa.html​.

  * Title VII: http://​www.eeoc.gov/​laws/​statues/​titlevii.cfm​.

  † Age Discrimination in Employment Act: http://​www.eeoc.gov/​laws/​statutes/​adea.cfm​.

  CHAPTER 9

  Ms. Ledbetter Goes to Washington

  In our view, the court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination.

  —RUTH BADER GINSBURG

  I NEVER WOULD see that $3.8 million jury award. Goodyear appealed, of course. In any event, by law, the damages were capped at $360,000. According to the 1991 law, compensatory and punitive damages under Title VII are subject to caps dictated by the company’s size. For a company with more than five hundred employees, the amount is $300,000, in addition to back pay, which is not included, bringing the total to $360,000. Race claims under Section 1981 of Title VII are not subject to limitations on damages.

  The local and national media immediately swirled around me: A verdict this large was unheard-of in a pay-discrimination case anywhere in the country. The foreman, the nurse, told Jon after the trial that there were a few on the jury, including both women, who at first didn’t believe I was discriminated against but were convinced otherwise by the rest, who “wanted to give Goodyear a bee sting” as far as punitive damages were concerned. Regarding compensatory damages, my stoic demeanor, the “emotional blunting” I conveyed, convinced the jury that I hadn’t suffered much emotionally when, ironically, this flattening effect on expressiveness is often one of trauma’s side effects. It’s also just my nature to hide my vulnerability, which I’m well aware can be interpreted as an inscrutable coldness; it’s really just a way of protecting myself from pain.

  Goodyear’s appeal put me in a holding pattern, a place the company left me often over the years. I resumed my daily life. Charles and I were happier than we’d ever been, spending time with Vickie’s three boys and Phillip’s new baby from his second marriage, Grace. Charles was also helping Phillip run his businesses.

  MORE THAN two years after the trial, I stayed home for the appeal hearing in Atlanta, since protocol dictated that only the lawyers appear before the judge to argue the briefs they’d already filed—Jon had another lawyer argue the case, since the date of the oral argument fell on a Jewish holiday. By the fall of 2005, the Eleventh Circuit Court of Appeals, one of the most conservative courts in the country, reversed the jury verdict, stating that my case was filed too late—even though I continued to receive discriminatory pay throughout my career—because Goodyear’s original decision to pay me discriminatorily had been made years earlier, in the 1980s.

  I was speechless. It wasn’t the fact that I lost the money. For some reason it had never felt real to me in the first place—it might as well have been Monopoly money. What felt real, what disturbed me deeply, was the fact that Goodyear was exonerated for its wrongdoing, simply because Goodyear had been doing me wrong long enough to make it legal, like certain African traditions mutilating young women. If it’s part of the company culture to discriminate in pay, then that company is free to continue business as usual.

  And all the good people who’d worked so hard to do the right thing had been mistreated as well. Worse, women in workplaces everywhere remained vulnerable to pay inequity. An employee still had 180 day
s from the discriminatory act, such as a firing or demotion, to file a discrimination claim, but with this decision the Eleventh Circuit Court had reversed what the EEOC and nine of the ten courts of appeals had applied in pay-discrimination cases under Title VII. Known as the paycheck accrual rule, this longstanding precedent ruled that repeated payments of discriminatory paychecks can be challenged as long as one paycheck occurred within the charge-filing period. In other words, each new paycheck was treated as a separate discriminatory act that started a new 180-day clock. By holding instead that all charges of pay discrimination must be filed within 180 days of the employer’s original discriminatory decision, the Eleventh Circuit Court reversed this accepted practice and left victims of pay discrimination with no recourse against pay discrimination they don’t immediately challenge. Under this new rule, employers are immunized from accountability for their discrimination once 180 days have passed.

  This decision also ignored prior court precedents such as the Bazemore ruling, which upheld the “continuing violation” doctrine of my unequal pay claim. Simply put, each time I received a lower paycheck based on discriminatory reasons, the law under Title VII was violated. But this ruling had now reversed that precedent.

  I assumed that my fight with Goodyear was over. There was nothing left to do. But I was wrong. In one way or another the fight is never over, at least when it comes to women’s rights, which are human rights. Before I knew it, Jon and his partner Bob Wiggins filed a cert petition, a request to review the Eleventh Circuit Court of Appeals’ decision to the Supreme Court. Another attorney, Kevin Russell, based in Washington, D.C., was called in to help with the petition.

  My case was a long shot. The Supreme Court declines review in about 99 percent of the cases presented to it—only about seventy are granted from around eight thousand submitted annually. While this appeal worked its way through the passages of the justice system at a glacial pace, I was focused on what was happening at home with Charles.