Jun 082016
 

By Julie Schwam Harris

I feel compelled to set the record straight. Owen Courreges recently published a piece opposing a meaningful Equal Pay for Women bill and opposing State Rep. Helena Moreno’s actions to promote women’s equality in elected representation, economic opportunity and freedom from fear of violence.

It is critical to recognize the link between the two events that inspired Moreno to action with the “It’s No Joke” campaign. Rep. Havard’s sexist “joke” about a bill trying to prevent young strippers from being mired in potentially dangerous situations on May 18 and the defeat of a good compromise Equal Pay bill on May 19 are linked because they are two sides of the same coin – sexism and unintended discrimination against women – that are hurting women, families and the economy in Louisiana.

Rep. Havard’s “joke” illustrated archaic attitudes some men have toward women that affect policy, lawmaking, hiring, work environment and pay decisions. I do believe he did not mean any harm to women or girls (he even voted for the bill) and neither do the overwhelming number of employers who unintentionally discriminate against women in the workplace. But the statistics show that women and the families they support suffer the unintended consequences of pay not being equal. And our economy suffers by forcing government to subsidize families where full time working women are not able to make ends meet on discriminatory salaries.

Louisiana would not be last in the country for what women earn on average compared to men – 65 cents for women overall and 48 cents for African American women to the dollar for men – if the laws on the books were adequate. In fact the current laws are ineffective and riddled with loopholes and, in essence, require an employee to prove that any discrimination was intentional.

The bill that advocates of Equal Pay supported – SB 254 – went to great lengths to avoid the falsely inflated fear of lawsuits that is being used by some to kill meaningful efforts to address the problem of pay inequities in the workplace. SB 254 established a procedure to support discussion between employee and employer — and the use of a neutral third party, the Louisiana Commission on Human Rights, if needed — to determine whether or not gender-based discrimination caused the difference in pay. The proposed law, like current law, clearly allowed differences to be based on bona fide reasons like (but not limited to) education, experience, productivity, time on the job – all the reasons for rewarding one employee over another regardless of gender. The key element missing in current law is protection from retaliation for even asking about wage differences. How can you find out if you are being discriminated against if you can be fired for asking?

We were grateful this year for the bipartisan support of so many male and female legislators and particularly Gov. John Bel Edwards on issues like Equal Pay that will help Louisiana citizens and the economy as a whole to thrive. We support the election of more women particularly because diversity brings a healthier dialogue on all of the issues that affect us.

We applaud Rep. Moreno’s renewed energy directed at policies and practices affecting women and we hope to similarly engage Rep. Havard, who is respected by many for being an independent legislator on issues important to working people. We need legislators like him on our side in trying to level the playing field for women and low paid workers in general. Maybe young women would be less attracted to dancing in strip clubs if they could make a good living in minimum wage jobs!

Julie Schwam Harris, a resident of Uptown New Orleans, is co-chair of the Legislative Agenda for Women.

  • Owen Courrèges

    Ms. Harris,

    You’re mischaracterizing SB 254. There is nothing in the proposed law that requires gender discrimination has actually occurred. That’s not a matter of opinion; it’s clear from the language of the bill itself.

    Under SB 254, a factfinder may hold that gender was not a factor in discriminatory pay, but that the reason for the differential was not due to a “business necessity,” or if it was, that it was not sufficiently “related to the job position.” This basically gives courts carte blanche to second-guess any pay differential between any individual male and any individual female employee, regardless of whether any sex discrimination is actually taking place.

    It is worth noting that the federal Equal Pay Act does not include similar provisions. The fact that the allegedly discriminatory pay was based on a factor other than sex is a defense without qualification. I fail to see why that isn’t adequate, unless the goal is actually broader than thwarting gender discrimination, and you instead want to severely limit the discretion of employers to set pay between employees through the threat of lawsuits.

    Also, existing Louisiana law simply requires that a plaintiff show that they were discriminated against on the basis of gender. It doesn’t require any particular mens rea to be shown on the part of the employer; it just requires that gender discrimination be proven (although presumably, a person found to be discriminating based upon gender, as opposed to another factor, will know exactly what they are doing). I’m not sure what kind of “loopholes” you’re actually talking about. If you think the difficulty of proving discrimination justifies a law that’s demonstrably overbroad and will require second-guessing complex pay decisions, that needs to be openly acknowledged.

    In short, your piece still leaves me with many questions: Why shouldn’t plaintiffs have to prove actual discrimination? Why should employers be liable even if they aren’t discriminating according to gender? Why should courts, as opposed to employers, have final say on what is necessary to a business or related to a job?

    Because you can’t seem to answer these questions, and instead want to push an unwarranted intrusion by government into employment matters for reasons that seem to extend well beyond preventing gender discrimination, I oppose SB 254 and I continue to oppose Moreno’s agenda.

    • Patricia Cullen

      If no discrimination was taking place, why would one pay be higher than another? Maybe the courts should bring up the conversation, which may make some employers question and/or realize their own motivation for the discrepancies in pay.

      The fact is that there IS differences in pay for equal work. Why Owen? If not based on gender, race, or any other ‘group’ why does it still exist? If the existing law is good enough for all why is the pattern still there?

      • Owen Courrèges

        Patricia,

        >>If no discrimination was taking place, why would one pay be higher than another?<>If not based on gender, race, or any other ‘group’ why does it still exist?<<

        Well, with regards to the gender pay gap, it virtually goes away when taking into consideration various variables, such as education, years of experience, years worked, hours worked, whether the pay was negotiated, etc. In other words, there are non-discriminatory factors that explain virtually all of the gap.

        The bottom line: If an employer can cite a non-discriminatory factor for a pay differential, and the jury believes the explanation, there's no reason why that shouldn't be accepted as a valid defense.

        • Patricia Cullen

          “Merely requires” that “another employee of a different sex for the same or substantially similar work on jobs that require equal skill, effort, education, and responsability and involve the same or equal working conditions including time worked in the position. ” I think you need time to let this sink in.
          You list 4 different defenses in opposition in your original argument. You also added that you presume an employment contract is a legitimate defense (which seems to be your only argument against this bill). However, I believe that an understanding of why one employee requires or is offered a contract and not another should also be an issue and can in itself be discriminatory.
          What other non-discriminatory factors are there for paying one more than the other?

  • Linda Kocher

    Thank you, Ms. Harris, for making the point so clearly that, intended or not, women in this state, and their families, are losing out because of entrenched attitudes. Discrimination IS happening, and it’s no joke.

  • ChuckNoland

    To attempt to link the position of Mr. Courreges to the disgusting acts of Rep. “Neanderthal” Harvard is an unworthy tactic that diminishes your argument Ms. Harris.