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Mississippi’s equal pay bill could worsen the wage gap, critics say

Mississippi is the last state in the country to pass such legislation, but some critics say it could be worse than having no equal pay law at all

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For the last three years, Mississippi stood alone as the only state in the country that did not have a bill requiring employers to pay workers of all genders the same wages for the same job.

That could soon change.

Late last month, the Mississippi legislature passed an equal pay bill for the first time in its history. It now awaits Republican Gov. Tate Reeves’s signature.

Prominent female lawmakers in the state have praised the bill as a historic step that will help Mississippi close one of the worst pay gaps in the nation.

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Mississippi Attorney General Lynn Fitch, in a statement shared with Axios last month, called H.B. 770 a “giant leap forward in closing the twenty-seven percent pay gap — that makes it harder for working women and their families, that leads to young Mississippi women taking their talents beyond our borders, and that perpetuates the cycle of poverty in our State.”

But some women’s rights advocates say Mississippi’s bill could be worse than having no equal pay law at all.

“The bill actually harms the equal pay cause by providing much fewer protections than the current federal law does,” said Shannon Williams, director of Equal Pay Today, a campaign led by the women’s advocacy group Equal Rights Advocates.

Williams said it would write into law some of the very practices that perpetuate pay discrimination.

“I don’t know why we’re calling it an equal pay bill,” she said. “It actually gives employers more excuses to get away with paying women less.”

Federal laws already protect women against wage discrimination: The Equal Pay Act of 1963 prohibits sex-based discrimination between men and women performing similar jobs under the same employer, and the Lilly Ledbetter Fair Pay Act, signed into law by President Barack Obama in 2009, allows workers to challenge continuing pay discrimination by letting them bring forward discrimination suits retroactively.

But taking an employer to federal court can be difficult and costly. As a result, workers may prefer to pursue claims against their workplaces through state courts. Because Mississippi doesn’t have an equal pay law, this has not been an option for workers looking to file sex discrimination cases in the state.

The bill’s text says employers are banned from paying an employee “a wage at a rate less than the rate at which an employee of the opposite sex in the same establishment is paid for equal work on a job, the performance of which requires equal skill, effort and responsibility, and which is performed under similar working conditions.”

But it also has substantial loopholes, according to critics.

The Mississippi bill says differences in pay can be justifiable in some instances, reports the Mississippi Free Press: for example, if there is a “seniority system,” a “merit system” or a “system which measures earnings by quantity or quality of productions.”

Mississippi’s equal pay bill also allows an employer to pay a woman less based on her salary history or gaps in her employment history.

“It is definitely the opposite of an equal-pay bill in that it rubber stamps an employer’s decision to pay women less for equal work than a man because of her salary history,” Cassandra Welchlin, state lead for the Mississippi Black Women’s Roundtable, told the Free Press. “And so it will codify into law that an employer can discriminate based on what a woman made in the past.”

Basing a worker’s pay on their past salary has been a pervasive practice in the United States for decades, though it has been called into question by policymakers in recent years.

Because female workers tend to earn less than men at the start of their careers, the policy has made it hard for women to catch up to the wages their male counterparts make. Women are also more likely than men to take time away from their career to take on caregiving responsibilities, which means their wages and career progression can stagnate in a way men’s typically do not. In fact, as women age, the gender pay gap actually gets wider, according to the Census Bureau.

Under the Mississippi bill, protections for women who bring forward discrimination suits are also limited.

If a worker brings a sex-discrimination suit against their employer in Mississippi, they would receive less damages than under federal law: Only back-pay and legal costs would be covered, and there is no retaliation protection for workers who file suits against their employers. The bill also requires workers to waive their right to a federal claim if they bring one forward to the state.

Michael Strain, an economist at the American Enterprise Institute, a right-leaning think tank, said the efficacy of any equal pay bill depends greatly on cultural attitudes and enforcement: Are workers comfortable bringing discrimination claims forward? What happens when they do?

These answers can vary wildly from state to state, Strain said. If courts don’t enforce anti-discrimination policies, they’re a moot point.

“For things like equal pay initiatives, that’s where a lot of the bite comes from,” Strain said. “It’s not so much about the provisions.”

Mississippi’s equal pay rules would only apply to full-time workers and employers with more than five employees. Unlike some equal pay bills in other states, the bill doesn’t make any mention of race — a critical oversight, critics say of the legislation.

Women of color in Mississippi “are facing compounded wage gaps not just because of their gender, but because of their race,” Williams said. “This bill will not help that.”

Mississippi state Rep. Angela Cockerham (I), lead author of the bill, said she modeled the legislation after federal equal pay law, according to Axios. Cockerham, who is Black, said she didn’t want to pit women against each other: “The bill is to uplift women.”

Mississippi state Sen. Brice Wiggins (R), one of the bill’s champions, called the legislation “extremely business friendly, and also will put women in Mississippi on the same level as every other state in this country,” reports the Clarion Ledger. Wiggins had fielded concerns from the state Senate about whether the equal pay bill could invite “frivolous” lawsuits.

Compared to how other states are addressing the gender wage gap, Mississippi’s bill is an outlier.

In recent years, more cities and states have opted to ban salary history requirements. They have also moved to address the gender wage gap by focusing on pay transparency and bolstering protections against workplace retaliation.

Since 2010, more than a dozen states have adopted legislation banning pay secrecy rules in the workplace, according to the Institute for Women’s Policy Research. This year, New York City made headlines when it said it would require employers to list salary ranges on job postings, citing concerns that pay secrecy disproportionately affects female workers (businesses have pushed back against the law).

“The idea is that if there are no secrets, then every worker has a lot more bargaining power,” Teresa Ghilarducci, professor of economics at the New School for Social Research in New York City, told The Lily.

In the absence of such policies, some workers have also taken it upon themselves to be more transparent about the pay they earn.

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When it comes to gender equality in the workplace, Mississippi has lagged behind the rest of the country in a number of ways, experts say.

While the state ranks lowest in median weekly wages for men and women, according to the Bureau of Labor Statistics, women’s earnings lag far behind men’s.

According to a 2018 National Women’s Law Center report, women in Mississippi earned 75 cents on the dollar compared with men in the state. For Black and Latina women, this number was even lower: 56 and 54 cents, respectively, for each dollar paid to White men.

Women were also overrepresented in low-wage jobs: More than any other state in the nation, according to the NWLC. Nearly two-thirds of minimum-wage workers (who earned $7.25 an hour) were women. They also made up nearly 60 percent of the workforce living below the poverty line.

This has a substantial impact on families. Women are more likely than men to be the primary breadwinners for their family at 53.5 percent: the highest rate in the country, the Clarion Ledger reports.

Williams and other equal pay advocates worry that if signed into law, the bill will codify discriminatory practices.

As she said: “Anybody who really calls this an equal pay bill is probably not familiar with the things that are contributing to the wage gap.”

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