State Rep. Barbara Norton’s bill would define a prohibited employment practice for employers of four or more where pay differs on the basis of gender, and sets up a procedure receive damages if a violation is present. The important operative phrase is this:
No employer may discriminate against an employee on the basis of sex by paying wages to an employee at a rate less than that of another employee for the same or substantially similar work on jobs in which their performance requires equal skill, effort, education, and responsibility and which are performed under similar working conditions including time worked in the position. (emphases added)
The author and supporters assert that in Louisiana women only make 65 cents to the dollar of what men make, saying this provides justification for the bill because apparently existing federal statutes, under this interpretation, aren’t doing the job. But in the context of the bill, in making this claim she and they either are ignoramuses or they are deliberately misleading.
That “wage gap” figure is based upon all employed in all jobs. No distinctions are made between the kinds of jobs, which statistics have shown men disproportionately gravitate to the higher-paying and often more hazardous ones, or the number of hours worked, where women disproportionately gravitate to positions more of a part-time nature or those that feature shorter hours. A number of other factors also can affect earnings differentials:
When these kinds of considerations are taken in account, in fact the “gap” disappears; since the 1980s, the average female pay for men in the same jobs has been 98 percent. In fact, in many instances in the same jobs women earn more. Either Norton and other supporters are derelict in not knowing this, or she and they are dishonest in passing off this statistic that falsely tries to indicate illegal discrimination that simply doesn’t exist.
Worse is that the ambiguity of some of the language of the bill would go far beyond just equalizing pay for doing the exactly same kind and quality of work in the same job. When it mentions “rate,” it leaves this open to interpretations that could disregard the legitimate differential factors listed above. What if “rate” is considered an annual salary, as it would have to be in many cases? Again, without the qualifying factors above recognized (the bill attempts to account for some), employers could be sued for legitimate differences in pay. Even if the law and/or courts could create jurisprudence that recognizes these factors, the bill’s language makes it too easy to bring about complaints that especially small employers would have to spend disproportionate resources on addressing, creating incentives to pay female workers more simply because to stop harassment under theses guidelines. This means that, ultimately, that the law will discriminate against men.
Yet worst of all is the bill’s language surreptitiously tries to introduce the insidious concept of “comparable worth” into Louisiana law. When it refers to equal pay in “same or substantially similar work on jobs,” it is not limiting comparison within the same jobs, it is allowing comparison of work across different jobs where for each kind of job it is evaluated in terms of some kind of intrinsic “value” determined by the kinds of skills needed, education required, etc. In other words, it takes the marketplace out of determining the pay of a job and brings in artificial considerations that do not judge compensation on the basis of actual economic contribution the job makes. Under the law, if there’s a female oncology nurse making $25 an hour while a male corrections officer makes more, the medical employer would be in violation of the law.
As much approbation as there should be heaped upon the charlatans supporting the bill, shame should accrue also to legislators that should have known much better (such as state Rep. John LaBruzzo who may be trying to “soften” his image after recent controversy involving his views on welfare) and supported this bill. Hopefully, the House will send this 1980s retread that addresses a nonexistent problem that only will introduce more pay discrimination on the basis of gender and saddles business with higher costs back to the ash heap of history.