October 21, 2008 | New York Newsday

Kia Franklin, a senior fellow in civil justice at the Drum Major Institute for Public Policy, a nonpartisan think tank based in Manhattan, is the author of "Election '08: A Pro-Civil Justice Presidential Platform"

Roe v. Wade wasn't the only important Supreme Court case mentioned during the final presidential debate at Hofstra University last week. The candidates also had a tense exchange over a less famous case, Ledbetter v. Goodyear, which involved a woman named Lilly Ledbetter, who received unequal pay at her job for years without realizing it.

The discussion of Ledbetter's battle against discrimination reveals a great deal about each candidate's commitment to protecting the legal rights of ordinary Americans.

Sen. Barack Obama mentioned the Ledbetter case as an example of how an out-of-touch judiciary can erode important civil rights and legal protections, like those that make pay discrimination illegal. Ledbetter broke down barriers by becoming the first female supervisor in her section at Goodyear Tire and Rubber Co. in Gadsden, Ala. She served in that position for many years before making the startling discovery that she was being paid far less than her male counterparts simply because she was a woman. After an Equal Employment Opportunity Commission investigation ruled in her favor, Ledbetter filed a pay discrimination lawsuit, which she won at the trial level.

But what should have been a significant victory for Ledbetter soon turned into a miscarriage of justice when the Supreme Court reversed this decision, finding that because Goodyear had successfully hidden its first act of unequal pay for 180 days - in her case, it was actually many years - Ledbetter had lost the right to sue.

Ledbetter received an anonymous note about the discrimination shortly before she filed suit in March 1998. She had been working at Goodyear since 1979, so almost 20 years went by before she had any idea she had suffered discrimination.

Because many employers forbid employees from comparing salaries, and employees are unlikely to discover pay discrimination very quickly, this new interpretation of the 180-day statute of limitations - that it starts from the first act of discrimination, not when a victim first becomes aware of the discrepancy - essentially protects the ability of corporations to discriminate.

The Supreme Court's ruling strayed from years of precedent. And it now guarantees corporations the freedom to discriminate with impunity, while restricting access to the civil court system for many ordinary Americans who often have no other legal recourse.

As Obama noted, Congress attempted to correct the ruling with the Fair Pay Act. This pay equity legislation was designed to clarify that the statute of limitations runs for 180 days from the time when a person first becomes aware of the discriminatory act. It passed the House but failed in the Senate, demonstrating that it's not just the judiciary that's out of touch with the needs of ordinary Americans, many of our legislators are, too.

Sen. John McCain argued that Ledbetter was decided properly and dismissed the pay equity bill, on which he did not vote, as a "trial lawyers' dream." But is it a trial lawyer's dream, or is it a nightmare for ordinary people who find themselves on the wrong end of corporate abuse?

The critical question is: Which result would have best promoted the interests of average Americans? The answer favors Obama's point of view: The Supreme Court's ruling in Ledbetter, and Congress' failure to correct that decision, deprives Americans of the right to go to court to seek justice when they are harmed by the artfully concealed illegal acts of others. Under no reasonable interpretation does that constitute justice.

Lilly Ledbetter's story resonates for a reason. It is a poignant reminder that we need a national conversation about what all American citizens, whose taxes pay for the courts, should be able to expect from the civil justice system. The question for Obama and McCain to answer now is: How will you make justice attainable for ordinary Americans? As Ledbetter herself put it recently, "It isn't a Democrat or Republican issue, it's a fairness issue."

Voters should think about this before Nov. 4. Since the next president will undoubtedly make Supreme Court appointments, he needs to embrace the judicial values that will benefit a majority of ordinary Americans, not corporate interests.