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 gap 7 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 generally Hearing 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 by 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 Paycheck Fairness Act: Mandatory 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. Hearing 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. 836 LOUISIANA LAW REVIEW [Vol. 77 data confirms the existence of the gender wage gap, critics attempt to rationalize any wage discrepancy with an array of contributing factors. A. Explaining Away the Gender Wage Gap Although the gender wage gap has narrowed since the 1950s, 25 it is far from being eradicated. Many scholars have suggested that the gap is explained by a variety of factors, including women’s personal choices, such as childbearing and childrearing; ethnicity and age; education level; occupational segregation; experience and labor force participation; and employer discrimination. 26 However, none of these factors are sufficient to justify the entire gap between the wages of men and women. 1. Childbearing and Childrearing Society expects that women will become mothers. 27 Unfortunately, this societal expectation affects women’s status in the labor market. 28 Employers presume women will be short-term workers, as it is expected 25. The following are statistics of the pay gap for each year from 1960-2013: 1960–60.7%; 1961–59.3%; 1962–59.3%; 1963–58.9%; 1964–59.1%; 1965–59.9%; 1966–57.6%; 1967–57.8%; 1968–58.2%; 1969–60.5%; 1970–59.4%; 1971–59.5%; 1972–57.9%; 1973–56.6%; 1974–58.8%; 1975–60.2%; 1976–58.9%; 1977–59.4%; 1978–59.7%; 1979–60.2%; 1980–59.2%; 1981–61.7%; 1982–63.6%; 1983–63.7%; 1984–64.6%; 1985–64.3%; 1986–65.2%; 1987–66%; 1988–68.7%; 1989–71.6%; 1990–69.9%; 1991–70.8%; 1992–71.5%; 1993–72%; 1994–71.4%; 1995–73.8%; 1996–74.2%; 1997–73.2%; 1998–73.2%; 1999–72.3%; 2000–73.7%; 2001–76.3%; 2002–76.6%; 2003–75.5%; 2004–76.6%; 2005–77%; 2006–76.9%; 2007–77.8% or 22.2%; 2008–77.1%; 2009–77%; 2010–76.9%; 2011–77%; 2012–76.5%; and 2013– 78.3%. The Wage Gap Over Time, supra note 4. 26. Kulow, supra note 11, at 393. 27. See Jessica Valenti, Not Wanting Kids is Entirely Normal, ATLANTIC (Sept. 19, 2012), http://www.theatlantic.com/health/archive/2012/09/not-wanting-kids-is-entirely-normal/262367/ [https://perma.cc/2G44-HQLM]; Jessica Valenti, Are All Women Born to be Mothers?, WASH. POST (Aug. 31, 2012), https://www.washington post.com/opinions/are-all-women-born-to-be-mothers/2012/08/31/b5df2f0e-f2b1-11 e1-adc6-87dfa8eff430_story.html?utm_term=.55a11d84ad0b [https://perma.cc/4P68 -D4ZF]. See also January W. Payne, Forever Pregnant, WASH. POST (May 16, 2006)...