State Rep. Helena Moreno is on something of a tear lately following recent events in the legislature. First, one of her fellow state representatives, Rep. Kenny Havard, submitted a controversial amendment to a bill requiring exotic dancers to be of the age of majority. The amendment would have also tacked on a maximum age of 29 and a maximum weight of 160 lbs.
Havard tried to pass off the amendment as a “joke” about the dangers of overregulation. However, he ultimately voted in favor of the unamended bill, which tended to refute the notion that he was somehow satirizing government overreach.
Governor John Bel Edwards summed up the zeitgeist regarding Havard’s amendment: “It was in bad taste and it wasn’t funny.”
Next, Senate Bill 254, which would expand the Louisiana Equal Pay Act to cover private employers, was rejected 10-5 on a vote by the House Labor Committee. The panel’s sole female member, Rep. Dodie Horton, was among those voting against the measure on grounds that Louisiana law already prohibits sex-based wage discrimination.
Moreno reacted to these perceived setbacks by setting up a social media campaign dubbed “It’s No Joke” in reference to Rep. Havard’s dubious quip. Media coverage ensued.
“I’ve always known the way women are treated is a terrible problem, but it wasn’t until Kenny’s amendment and the failure of the equal pay bill that I knew I had to step up and take a bigger leadership role,” Moreno later said in an interview with Gannett Louisiana.
Moreno further pledged to bring back the equal pay bill next year, only with greater coordination and increased effort.
It’s difficult to deny Moreno’s righteous indignation at Rep. Havard’s joke. It was revolting, and perhaps evinces a juvenile and sexist atmosphere in the Louisiana House, where a whopping 89 of 105 of its members are male. This type of crass nonsense embarrasses the state.
However, the failure of SB 254, the equal pay law, was not the triumph of frat-boy antics. It was, rather, the failure of an overly-expansive and unfair law that would require courts to find companies liable for sex-based wage discrimination even in those cases where the evidence indicated that they were not discriminating according to sex.
You see, Rep. Horton was correct. Louisiana does already prohibit wage discrimination on the basis of sex. The Louisiana Employment Discrimination Law, La. Rev. Stat. 23:301, et. seq., already bars employers with 20 or more employees from intentionally discriminating in the compensation of any person on the basis of sex. The law specifically authorizes civil suits and permits the recovery of attorney’s fees.
So why is there a push for a new equal pay law when Louisiana has already outlawed wage discrimination? The answer is simple – to reduce the standard of proof and put employers at a disadvantage where a wage differential is shown.
Existing law compels a plaintiff in state court to prove that they were discriminated against according to their sex. SB 254 merely requires a plaintiff to show that they were paid less than “another employee of a different sex for the same or substantially similar work on jobs that require equal skill, effort, education, and responsibility and involve the same or equal working conditions including time worked in the position. ”
The employer’s defenses are also limited. Essentially, a employer can only defeat the lawsuit if they show that the wage differential was based on one of the following:
(1) A seniority system.
(2) A merit system.
(3) A system that measures earnings by quantity or quality of production.
(4) A differential based on a bona fide factor other than sex and consistent with a business necessity, including but not limited to education, training, or experience, provided that the employer demonstrates that such factor is related to the job position in question.
In other words, there’s nothing in SB 254 that actually requires the factfinder to believe that any gender discrimination actually occurred. A jury could find that the wage differential was based on a non sex-based factor, but nevertheless proceed to second-guess the business necessity of the reason given for the differential or its relationship to the position.
Basically, unless a wage differential is based on a documented system utilizing seniority, merit, or productivity, an employer has no idea when they can pay different wages to different employees, even if they genuinely feel that they have legitimate reason for doing so.
Call me crazy, but I think that if you have a law that purports to remedy sex discrimination, proof that there was no sex discrimination ought to be an absolute defense.
As Renee Amar of Louisiana Association of Business and Industry (LABI) explained, the proposed amendment went “far beyond equal pay for equal work.” It would lead to “employers [being] in a constant state of defending their pay practices to attorneys. “
Louisiana clearly needs to do better when it comes to the needs of women, but that doesn’t mean that every scrap of legislation coming down the pike purporting to help women is fair or well-advised. We can eliminate boorish behavior in the legislature and still maintain a level head when it comes to passing sweeping new employment laws.
Moreno is correct that women’s rights are no joke. That’s all the more reason why reckless legislation like SB 254 merits rejection.
Owen Courrèges, a New Orleans attorney and resident of the Garden District, offers his opinions for UptownMessenger.com on Mondays. He has previously written for the Reason Public Policy Foundation.