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Last Equal-Pay Holdout Debates Treating Men and Women the Same

Feb. 11, 2022, 11:01 AM

This could be the year that Mississippi becomes the 50th state to require women to be paid the same as men for doing the same job.

Equal-pay legislation (H.B. 770 and S.B. 2451) soon will head to a conference committee, after a Senate debate in which the lawmakers pushing for the bill said it’s mostly symbolic.

Neither proposal is likely to change many female workers’ paychecks because employers would still be allowed to pay men more based on seniority or merit, say advocates including Lilly Ledbetter, for whom Congress named a 2009 equal pay law.

“We want lawmakers to pass a bill that would not widen the wage gap, and if either one of these bills come out, even if they collaborate, lawmakers will be working to increase the wage gap and discriminate against women’s wages,” said Cassandra Welchlin, executive director of Mississippi Black Women’s Roundtable, during a Thursday interview.

Business Concerns

Mississippi needs to stop being the national outlier so that young women can be sent the message that the state will protect them, Sen. Nicole Boyd (R), co-author of the Senate bill, said on her chamber’s floor on Feb. 9.

Boyd reminded colleagues of the 2020 debate to move on from the past by changing the state flag.

“This is a symbol, just like we’ve fought so hard to make changes to the symbols that represent our state,” she said. “When we’re the only state in the country that doesn’t have state protections for women, that is not the message that we need to send.”

Some senators expressed concerns that small businesses would face additional legal costs for complaints filed under state law as well as federal law.

‘Any Old Thing’

The Senate bill would perpetuate wage discrimination based on gender and race because it doesn’t ban questioning job applicants about their salary history, nor does it prohibit retaliation against women who file complaints, Welchlin said.

“We’ve heard from our women. They don’t want just any old thing,” she said. “This is a really harmful bill that will create more disparities.”

The bill passed by the House wouldn’t apply to employees who work fewer than 40 hours a week, or to businesses with fewer than five employees.

“I’m not sure how many women would ever use it,” said Andrea Johnson, director of state policy at the National Women’s Law Center, about the House bill.

“If a woman takes some time to care for children or a family member, the employer can say, ‘Well, she had a gap of a year, or even a few months, in her resume, and that’s why I paid her less than a man doing the same job,’” Johnson said. “That’s not OK. That’s the reason why we have equal pay laws.”

The measure “is codifying into law those discriminatory justifications,” she said.

VIDEO:If Women Still Earn Less, Can Laws Even Fix The Pay Gap?

Alabama Was No.49

The House bill specifies that Mississippi courts would be required to follow federal precedent in deciding claims, unless the state’s Supreme Court or Court of Appeals made a contrary ruling.

But federal precedent is murky because the U.S. Supreme Court hasn’t weighed in on the issue of salary history, and lower courts haven’t ruled consistently, said Nicole Porter, professor of employment discrimination at the University of Toledo’s College of Law.

“It’s an open question under the Equal Pay Act whether an employer is allowed to use salary history as a defense,” she said. “Some federal circuits have interpreted the Equal Pay Act to prohibit employers from relying on prior salary, and some have gone the other way.”

Women make up 51.5% of Mississippi’s population, and over half the state’s workforce is comprised of women ages 16 and up, according to U.S. Census data.

Mississippi and its neighbor Alabama had been the only two states without bans on wage discrimination. in 2019, Alabama Gov. Kay Ivey (R) signed a gender pay equity law that also banned pay discrimination based on race and blocked employers from requiring job applicants to disclose previous salaries or wages.

Most other states have had equal pay bills for decades, and since 2016 they’ve been updating those statutes to make them more stringent on employers and more generous to employees, Porter said. Those laws also mostly allow concurrent state and federal claims.

Ledbetter worked as a supervisor at a tire plant in Alabama for nearly 20 years before realizing she wasn’t getting paid as much as men doing similar jobs. The long-term repercussions of that disparity makes her retirement financially challenging, she wrote in a Feb. 9 column for Mississippi Free Press.

“I urge Mississippi legislators to swiftly amend these two bills so that all workers in this state can work with dignity and the security of real, meaningful equal-pay protections,” she said. “Mississippians literally cannot afford anything less.”

To contact the reporter on this story: Jennifer Kay in Miami at jkay@bloomberglaw.com

To contact the editors responsible for this story: Katherine Rizzo at krizzo@bgov.com; Andrew Harris at aharris@bloomberglaw.com

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