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Accidental Heroines—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on March 8, 2012.

Accidental Heroines
By Linda Greenhouse ’78 MSL

Is Sandra Fluke this election cycle’s Lilly Ledbetter?

You remember Lilly Ledbetter, the poised grandmother who addressed the 2008 Democratic National Convention. A native of Possum Trot, Ala. And a former overnight-shift manager at a Goodyear tire factory, where she was the only woman in her job category. Ms. Ledbetter learned only as she neared retirement that despite promotions and regular raises, she was being paid much less than any of the men. The Supreme Court ruled by a vote of 5 to 4 that she should have figured that out years earlier, and threw out her sex-discrimination lawsuit because she was too late in filing a formal complaint.

Two women, a generation apart: one disrespected by the three-day rant of a thuggish talk show host, the other dissed by five members of the Supreme Court. Each is an accidental heroine (as was Anita Hill, more than 20 years ago) whose plight touched a nerve already inflamed by deeper concerns roiling the public sphere.

In Lilly Ledbetter’s case, it was a mix of old and new: the old concern about equal opportunity and fairness in the workplace given new urgency within the Democratic base by distress at the Supreme Court’s abrupt rightward shift following Justice Sandra Day O’Connor’s retirement and her replacement by Justice Samuel A. Alito Jr. It was Justice Alito who wrote the majority opinion in Ledbetter v. Goodyear Tire & Rubber.

The decision interpreted the 180-day statute of limitations in the country’s basic law against job discrimination, Title VII of the Civil Rights Act of 1964. The court held that the 180-day clock for reporting incidents of discrimination starts running with the initial discriminatory act – in this case, the long-ago decision to pay Ms. Ledbetter less than her male peers. The majority rejected her lawyers’ argument that the clock should be deemed re-set with every subsequent paycheck that reflects and carries forward the original discrimination.

The Equal Employment Opportunity Commission, the federal agency that administers Title VII, had long adhered to a “paycheck accrual” rule that treated each paycheck as a fresh act of discrimination. The agency had argued this point on Ms. Ledbetter’s behalf in the lower courts. But once the case reached the Supreme Court, the Bush administration adopted the opposite interpretation and switched sides.

Justice Ruth Bader Ginsburg, the only woman on the court at the time, read her dissenting opinion from the bench. She noted that workers in the private sector typically had no way of knowing what others were earning. (Ms. Ledbetter had suspected the pay disparity, but her manager told her that the men who boasted about their pay were just exaggerating.) Claims of pay discrimination thus differ, Justice Ginsburg explained, from claims of discriminatory dismissal, or failure to hire or promote – events that take place in the open and don’t rely on a scribbled anonymous tip like the one that Ms. Ledbetter found in her mailbox. Justice Alito dismissed the distinction between pay and other claims as a “policy argument” that was not the court’s business.

At the end of her dissenting opinion, Justice Ginsburg declared that “the ball is in Congress’s court,” and that it was up to the legislative branch “to correct this court’s parsimonious reading of Title VII.”

It’s what happened next that makes this episode worth recalling. Congressional Democrats introduced a bill within days to overturn the court’s statutory interpretation. It passed in the House of Representatives but died in the Senate in the face of a threatened Republican filibuster. That was in April 2008, perfect timing for the birth of an election issue. Senator Barack Obama had voted for the bill while his Republican opponent, Senator John McCain, opposed it. Both Barack and Michelle Obama mentioned Lilly Ledbetter repeatedly during the campaign, describing her as a victim of the Republicans’, and the Republican-dominated Supreme Court’s, disregard for women in the workplace. President-elect Obama invited Ms. Ledbetter to join him on his pre-inauguration train trip to Washington and danced with her at one of the inaugural balls.

The new Congress, convening in January 2009, quickly passed the Lilly Ledbetter Fair Pay Act. It was the first bill that President Obama signed into law. A photo at a White House reception following the signing shows a beaming first lady with her arm around Ms. Ledbetter’s shoulder.

There is something almost nostalgically conventional about the Lilly Ledbetter narrative and its speedy trajectory from the court to Congress to the campaign stump to the White House. Once the wheels started turning, the result was almost comfortably predictable, equality for women in the workplace being a no-lose issue for any Democrat. I’m sure President Obama had the Ledbetter experience in mind last Friday when he made his well-timed phone call to Sandra Fluke to support her in the face of attacks from Rush Limbaugh and other conservatives for her effort to get her Catholic law school to cover the cost of its students’ birth control.

Clearly, Ms. Fluke, whose name was unknown a week ago, has become a symbol – but of what, exactly? It’s useful to listen to people who agree with Rush Limbaugh but who don’t want to sound like him. Writing in Tuesday’s Wall Street Journal, Cathy Cleaver Ruse, a senior fellow at the Family Research Council, an arm of the religious right’s “pro-family” movement, said that “Ms. Fluke’s crusade for reproductive justice is simply a demand that a Catholic institution pay for drugs that make it possible for her to have sex without getting pregnant.”

In other words, sex without consequences. And that’s the real issue – deeper than the religious garb in which the debate over access to contraception is clothed. (As an aside, note the canny use of “drugs” rather than “prescription medication.”) While I have no idea whether the 30-year-old Ms. Fluke wants sex at all – she is advocating for a principle on behalf of all women at Georgetown Law School, not just for herself – the right clearly sees her as the embodiment of what it fears in modern American culture, where women are free to indulge themselves and get away with it.

The other side, for its part, has turned Ms. Fluke and the verbal abuse she suffered into a convenient symbol of “the Republican war on women,” as the Democratic Congressional Campaign Committee has labeled it in a series of fund-raising emails. One that landed in my in-box the other day was signed by Billie Jean King, the tennis legend. “Republicans are waging an epic battle against women’s health care choices,” it read.

President Obama’s support among women is surging, and this entire episode has obviously given the Democrats a strong hand. But it’s a hand that can be overplayed. Fair play for Lilly Ledbetter had no discernible downside. But hitting just the right note now, and sustaining it through a long campaign, may require more delicacy than mere repetition of the “Republican war on women” mantra offers. Beyond slogans, we need a serious conversation about how women live their lives and about how women’s ability to control their fertility contributes to the welfare of American families. I have no doubt that the Democrats are on the right side of history on this one. But I also worry that despite the exhilaration of recent weeks, when everything seemed to break their way in large part as a result of stupefying blunders by their adversaries, the Democrats still have a substantive job to do.

If you think my concern is unfounded, here’s a little experiment. Go to YouTube and listen to Loretta Lynn sing “The Pill.” The song was a country music hit for her back in 1975, a feminist anthem in its message if not in its rustic imagery:

“You wined me and dined me when I was your girl
Promised if I’d be your wife you’d show me the world
But all I’ve seen of this old world is a bed and a doctor bill
I’m tearing down your brooder house ‘cause now I’ve got the pill.”

Listen to the song, and don’t miss the line: “This incubator is overused because you’ve kept it filled.” Listen, and ask yourself whether this song would get air time on a commercial station today. I wouldn’t bet on it.