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

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, NAT’L

WOMEN’S 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. ASS’N 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 & SOC’Y 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 Laws—A Necessary Tool For Closing the Residual Gender

Wage Gap, 50 HARV. J. LEGIS. 385, 393 (2013).

12. See discussion infra Part I.A.1–6.

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. DEP’T 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.