You might have missed it in the midst of the discussion of abortion and the Supreme Court but the issue of pay discrimination got a brief airing by Senator Obama during Wednesday’s Presidential Debate. (You can view the transcript here). 

Here was the entire portion:

Obama: So this is going to be an important issue. I will look for those judges who have an outstanding judicial record, who have the intellect, and who hopefully have a sense of what real-world folks are going through.

I’ll just give you one quick example. Sen. McCain and I disagreed recently when the Supreme Court made it more difficult for a woman named Lilly Ledbetter to press her claim for pay discrimination.

For years, she had been getting paid less than a man had been paid for doing the exact same job. And when she brought a suit, saying equal pay for equal work, the judges said, well, you know, it’s taken you too long to bring this lawsuit, even though she didn’t know about it until fairly recently.

We tried to overturn it in the Senate. I supported that effort to provide better guidance to the courts; John McCain opposed

I think that it’s important for judges to understand that if a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will. And that’s the kind of judge that I want.

Schieffer: Time’s up.

McCain: Obviously, that law waved the statute of limitations, which you could have gone back 20 or 30 years. It was a trial lawyer’s dream.

The subject was the decision in Ledbetter v. Goodyear.  The Manpower blog has a post earlier this week on the case that summarized it pretty succinctly (if overly so).  There’s been a lot written on it as well including this good piece from The Word on Employment Law this spring. 

Unfortunately, the case has gotten so whittled down to a soundbite that the central holdings of the case — regarding statute of limitations — gets lost.  But you can read the bill that was proposed last year here.

 I summarized the issue in a post this summer: on a related bill, the Paycheck Fairness Act and reviewing it again, I think my comments are fairly on point with what occurred in the debate.

The issue in Ledbetter case was, in many ways, a technical question of how far back an employee should be able to go to challenge past pay practices — in other words, about deadlines and "statute of limitations".  The Supreme Court said that the 180-day deadline found in the statute should apply. 

Should the statute of limitations remain at 180 days? 1 year? 2 years? 5 years? 20 years?  I don’t suggest to know what the right answer is.  Ultimately, the answer to that question will help shape the Paycheck Fairness Act bill’s final outcome and it should be the one that the politicians focus on. 

Employers would certainly like shorter statute of limitations and have good arguments that because supervisors leave, short statute of limitations prevent stale claims from being brought. But employees have decent arguments that a longer statute of limitations should apply because discriminatory pay practices are often learned of only after they occur. 

For employers, the debate over the Paycheck Fairness Act is one worth paying attention to because the real-world consequence of the bill’s passage (whether now or next year) will be to increase the importance of documenting pay practices and to give employers another reason to preserve such documents for future litigation.   

Hopefully, as the bill progresses, we’ll see more debate on the pros and cons on having longer deadlines to file suits.

We didn’t hear much in the specifics tonight but we’ll see if anything transpires in the closing weeks of the election.