Baby May Have Back, but Mark Kirk's Sorry Email Push Poll is Thin on Facts

Yesterday we were all amused by brownsox' Daily Kos post about Mark Kirk's admitted inclusion of the sexist song Baby Got Back in his iPod list particularly in light of his recent votes against gender pay equity. However, today it's not all that funny in light of an email he sent to constituents this morning defending his vote against the Paycheck Fairness Act (PFA) in a bit of dishonest damage control that seriously misrepresents the PFA.

This is what he said in the email:

While Americans already have the right to bring an equal pay discrimination lawsuit, Congress considered making radical changes (H.R. 1338) that would transfer control of your case to others. In short, the proposed bill would:

Automatically make you a member of a class-action lawsuit whether you were discriminated against or not and even if you were unaware of the lawsuit. The new law would force women to proactively opt-out of the class action lawsuit or forfeit her right to sue independently. If you did not opt- out in time, you could lose your right to bring your own lawsuit in the future.

Remove the current $300,000 cap on punitive damages for intentional discrimination suits, opening up a new round of unlimited non-economic damage lawsuits; and allow huge punitive damages to be charged against an employer even if the court found only unintentional discrimination. Employers will be forced to increase the prices of their goods by reducing wages or eliminating jobs.

Allow Congress to take away your right to govern your own lawsuit - class-action lawsuits would be controlled by trial lawyers that routinely take over 30% of all court awards for themselves. We have seen other class action suits yield questionable results, including an infamous case that awarded poor plaintiffs 33 cents but required them to file for their award using a stamp costing 34 cents. Of course, trial lawyers made millions just the same.

He goes on to include a push poll type of poll question that he'll later use in ads to show that the district agrees with his votes. The question was:

Should Congress force a woman to proactively opt-out of class action lawsuits or lose her right to sue for wage discrimination?

Kirk over simplifies and generally misleads constituents about the Paycheck Fairness Act by omission.

Corporate wage secrecy is one of the enablers of wage discrimination. You might remember that Lilly Ledbetter lost her ability to sue for wage discrimination compensation because she was unable to timely discover that she was the victim of wage discrimination. The PFA works to avoid that unjust outcome in making it illegal for an employer to rataliate against workers inquiring about their employers' wage practices or disclosing their own wages to other workers. Under the PFA, defending employers are required to show that wage gaps truly are the result of factors other than sex discrimination, and U.S. Department of Labor is finally required to do its job as related to equal pay issues such as collecting wage-related data, a practice it used to have and stopped.

Kirk would have constituents believe that the PFA is a wage discrimination rather than wage equity bill claiming that it requires women to give up control of their legal actions against employers. That is nonsense. With all the timing issues described in the Ledbetter case, and with all the limits and caps keeping pay equity awards low under current law, women have had few viable wage discrimination cases to begin with. Under PFA women are able to understand where they fit into the pay scale and can be awarded full compensatory and punative damages as are awarded in wage discrimination cases based on race or ethnicity.

The class opt-out provisions of PFA that Kirk disfavors actually helps women maintain gender based pay discrimination class action lawsuits. Opt-out provisions are considered valid due process and the general class action federal rules were changed in 1966 to adopt the opt-out method with most states adopting the federal rule. The idea of a class action suit is to remove the requirement of joining every single possible plaintiff individually. The older opt-in process was rejected by the federal rules and many courts in the 1960s because they created joinder issues that the class action suit was designed to avoid and prevented classes from becoming large enough to obtain class certification without which cases would be dismissed. The public policy of the opt-out rule was most articulately described in a well known California case, Carlson v. Superior Court, 33 Cal.App.3d (July 25, 1973), where the court described its reasons for disfavoring opt-in requirements with complex notice procedures:

We fear that the notice procedure employed by Edison is susceptible of great abuse. In essence, plaintiffs' attorneys will be forced to expend extraordinary time and effort to round up persons of a disorganized class with whom they probably have had no prior contact; such occurred in the instant case. Prospective deponents who do not heed informal efforts on the part of counsel and do not appear will face potential exclusion. Thus, a defendant can effectively stifle a class action at the discovery stage, either by imposing impossibly expensive burdens on the named plaintiffs or by chipping away at the size of the class through exclusion of the unnamed plaintiffs. It is especially vital to prevent such 'chilling' of class actions in light of their new importance as a litigation tool, presaged by recent federal cases and our own decisions in Daar v. Yellow Cab, supra, 67 Cal.2d 695 [63 Cal.Rptr. 724, 433 P.2d 732] and Vasquez v. Superior Court, supra, 4 Cal.3d 800 [94 Cal.Rptr. 796, 484 P.2d 964]." (Italics added.)

The effect of an opt-in requirement can be seen in a recent California case, Hypertouch Inc. v. Superior Court of San Mateo County, 128 Cal. App. 4th 1527 (May 5, 2005), wherein the court noted and upheld an opt-out requirement because under an opt-in procedure that was being used under a particular statute that did not follow the general rule, out of more than 100,000 estimated class members in that case, only 55 actually "opted-in."

A New York court recently made a similar observation in Guzman v. VLM, Inc. d/b/a Reliable Bakery, Case No. 07-CV-1126, pending in the U.S. District Court for the Eastern District of New York. The court in Guzman concluded that opt-out was appropriate because "workers might be reluctant to affirmatively opt-in to the case for fear or reprisal and retaliation."

In the name of helping women, Kirk is actually seeking to prevent women from building viable class size to maintain class action suits. This is a common corporate defense strategy against class action suits.

You can read more about the PFA at the National Women's Law Center and see why this bill is vital for American working women.

As for Kirk, he just voted with his party to help out corporations that fight against pay equity with the millions they save in not paying US income tax and has no problem lying about the bill to try and make it look like he's not the sexist, anti-pay equity congressman that he is. Even more troubling is his new style of using email as a push poll to elicit favorable responses to his voting record with misleading and unfair questions.

NOTE: A reader reminded me of this: On August 6, a group of constituents, men and women, delivered a letter to Mark Kirk's office asking him why he voted against the PFA.



It appears that Mark Kirk's response to their concerns was the dishonest email I describe herein.