Mind the Gap: Bridging Gender Wage Inequality in Louisiana

Author:Katilyn Hollowell
Position:J.D./D.C.L., 2017, Paul M. Hebert Law Center, Louisiana State University.
Pages:833-878
 
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Mind the Gap: Bridging Gender Wage Inequality in
Louisiana
INTRODUCTION
The public policy of Louisiana is that “a woman who performs public
service for the state is entitled to be paid the same compensation for her
services as is paid to a man who performs the same kind, grade, and quality
of service, and a distinction in compensation may not be made because of
sex.”1 Strikingly, Louisiana women who are not in public service are not
entitled to the same protections.2 President Bill Clinton has acknowledged,
“[y]ou wouldn’t tolerate getting to vote in three out of every four elections.
You wouldn’t like it if someone said you could only pick up three out of
every four paychecks. But that is, in effect, what we have said to the
women of America.”3 This statement is even more applicable in Louisiana,
where the wage gap is nearly 14% higher than the national average.4
Scholars in the field have recognized that federal gender wage equality
provisions are dying out from various “ailments,” including “inefficiencies,
excessive costs, bureaucratic red tape, and obsolescence.”5 A legislative
measure aimed at fixing these ailments could do much to aid all Louisiana
workers and to bridge the gender wage gap that has plagued Louisiana for
Copyright 2017, by KATILYN HOLLOWELL.
1. LA. REV. STAT. § 23:662 (2016) (emphasis added).
2. See generally id. §§ 23:662, 23:332.
3. President William J. Clinton, Remarks on The Equal Pay Act (June 10, 1998).
4. At the time of President Clinton’s speech, the national gender wage gap
meant women earned 73.2 cents on the male dollar, the equivalent of approximately
three out of every four paychecks a man received. The Wage Gap Over Time, NATL
WOMENS L. CTR., http://nwlc.org/wp-content/uploads/2015/08/wage_gap_over
_time_overall_9.21.15.pdf [https://perma.cc/YC5S-LRJX] (last visited Oct. 13,
2016). Louisiana’s gender wage gap for 2014 was 65 cents, meaning women in
Louisiana would receive fewer than two out of every three paychecks a man in
Louisiana receives. AM. ASSN OF UNIV. WOMEN, THE SIMPLE TRUTH ABOUT THE
GENDER PAY GAP 7 (2015) [hereinafter THE SIMPLE TRUTH]. This Comment was
written before the most current version of The Simple Truth was released. The most
current version can be accessed here: http://www.aauw.org/aauw_check/pdf_down
load/show_pdf.php?file=The-Simple-Truth [https://perma.cc/TN6P-ZPA2].
5. Andrew Brenton, Comment, Overcoming the Equal Pay Act and Title VII:
Why Federal Sex-Based Employment Discrimination Laws Should Replaced with a
System for Accrediting Employers for Their Antidiscriminatory Employment Practice,
26 WIS. J.L. GENDER & SOCY 349, 350 (2011).
834 LOUISIANA LAW REVIEW [Vol. 77
decades.6 The gender wage gap7 in Louisiana in 2014 was 35% and has been
increasing in the last few years.8 This statistic makes Louisiana last in the
nation, where women make an average of 65 cents on the male dollar.9
Nationally, women make an average of 79 cents on the male dollar, a wage
gap of 21%.10
Historically, the gender wage gap has been explained away by several
factors, including education, occupational segregation, childbearing,
childrearing, and labor force participation.11 As these factors have become
less prevalent over time,12 many have realized that a portion of the gender
wage gap still cannot be explained and is attributable to gender wage
discrimination.13
Currently, a woman in Louisiana has several methods to claim wage
discrimination, including filing a claim under federal or state law.14
However, these laws are insufficient and do not offer adequate protections
to employees, specifically because Louisiana operates under two equal pay
regimes, thus affording better protections to one group of working women
over others.15 Louisiana employees need a new statutory regime that is
efficient, clear, and gives all employees equal rights and protections
regardless of gender or employer. This regime should provide protection to
both public and private employees in Louisiana. Therefore, the Louisiana
Legislature should modify and pass Senate Bill 219, which failed during the
2015 Regular Legislative Session.16
Part I of this Comment provides background on the history of the
gender wage gap in the United States and in Louisiana, as well as historical
explanations and justifications for the existence of the gap. Part II and Part
6. See gener ally Hea ring on S.B 219 Before the H. Comm. on Labor &
Indus. Relations, 2015 Leg., Reg. Sess. (La. 2015).
7. The gender wage gap is the difference in the annual wages received b y
men and women, often for similar work. THE SIMPLE TRUTH, supra note 4, at 5.
8. Id. at 7.
9. Id.
10. Id.
11. Marianne DelPo Kulow, Beyond the Pa ycheck Fairness Act: Manda tory
Wage Disclosure LawsA Necessary Tool For Closing the Residual Gender
Wage Gap, 50 HARV. J. LEGIS. 385, 393 (2013).
12. See discussion infra Part I.A.16.
13. Kulow, supra note 11, at 393.
14. See Equal Pay Act of 1963, 29 U.S.C. § 206 (2012); Title VII, Civil
Rights Act of 1964, 42 U.S.C. § 2000e (2012); Lilly Ledbetter Fair Pay Act, 42
U.S.C. § 2000e (2012); Fair Labor Standards Act, 29 U.S.C. § 201 (2012); 29
U.S.C. § 216(b) (2012); LA. REV. STAT. §§ 23:303, 23:332, 23:665 (2016).
15. LA. REV. STAT. §§ 23:662, 23:332.
16. Hearin g on S.B. 219, supra note 6.
2017] COMMENT 835
III explain the current federal and state statutory frameworks governing
wage discrimination, respectively. These sections include a discussion of
the rights, exceptions, defenses, and procedural mechanisms used to sue
under each statutory provision, as well as how the different statutory
provisions are interrelated or contradictory. Additionally, Part II and Part
III illustrate the current problems, difficulties, and ambiguities associated
with both the federal and state laws governing equal pay rights and
unlawful employment practices. Part IV discusses the recently proposed
Louisiana bill, Senate Bill 219, which failed to make it to the House floor
in the 2015 Regular Legislative Session, and analyzes changes that are
needed for the proposal to successfully pass through the Louisiana
Legislature and jumpstart the process of bridging gender wage inequality
in Louisiana.
I. THE HISTORY AND EFFECT OF THE GENDER WAGE GAP
The term “gender wage gap” refers to the difference in women’s and
men’s annual median earnings.17 This figure is reported as a ratio, but can
also be reported as an actual pay gap in annual median earnings from the
previous year.18 The earnings ratio is the ratio of women’s annual median
salary and men’s annual median salary from the previous year.19 For
example, women in the United States earned an annual median salary of
$39,621 in 2014 and men earned an annual median salary of $50,383.20
Therefore, the earnings ratio expressed as a percentage in 2014 was 79%.21
The gender wage gap expressed as an actual pay gap is the difference in
men’s annual median salary and women’s annual median salary, expressed
as a percentage when divided by men’s annual median salary.22 For
example, using the 2014 data from above, the pay gap was 21%.23 The
gender wage gap can also be reported in terms of men’s and women’s
median weekly earnings. The median weekly earnings tend to lead to a
smaller gender wage gap than the annual median salary calculations. Thus,
in 2014, the weekly gender wage gap was approximately 18%.24 Although
17. THE SIMPLE TRUTH, supra note 4, at 5.
18. Id.
19. Id.
20. Id. at 7.
21. CARMEN DENAVAS-WALT & BERNADETTE D. PROCTOR, U.S. CENSUS
BUREAU, U.S. DEPT OF COMMERCE, INCOME AND POVERTY IN THE UNITED
STATES: 2014, at 41 (2015).
22. Id.
23. Id.
24. THE SIMPLE TRUTH, supra note 4, at 17.

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