Mississippi has had the dubious distinction of being the last state in the nation to not have either an equal pay law or a non-discrimination statute that impacts employment. But that is likely about to change: The state legislature voted Wednesday to pass a bill that awaits the governor’s signature and would require employers to offer equal pay for equal work, ending years of efforts to pass a pay equality measure in the state.
While that might seem like a moment for advocates to celebrate, some are alarmed by provisions in the final bill, including one that specifically lists applicants’ continuous employment, negotiation attempts and salary history as factors employers might be able to use to justify a pay gap—the last of which moves in the opposite direction of laws that now ban the question in some 20 states.
The bill, argues Andrea Johnson, director of state policy at the National Women’s Law Center, which advocates for gender equality issues, is “taking the textbook factors that contribute to the wage gap and codifying them into law, saying they are permissible things for employers to rely on.”
Known as the Mississippi Equal Pay for Equal Work Act, the bill says employers may not pay workers less than those of the opposite sex for work that “requires equal skill, education, effort and responsibility, and which is performed under similar working conditions,” mirroring language in federal law. Like the federal law, it also makes exception for things like a seniority or merit system, as well as differences based on “any other factor other than sex.”
But unlike the federal law, Mississippi’s bill spells out what some of those “other factors” might be, including “the salary history or continuity of employment history … as compared to employees of the opposite sex” as well as “the extent to which there was competition with other employers” and the “extent to which the employee attempted to negotiate.”
That raises questions among some pay advocates and employment lawyers. “To explicitly say this—that’s concerning to us,” says Cassandra Welchlin, executive director of the Mississippi Black Women’s Roundtable, which has long advocated for an equal pay law in the state. She says the new bill codifies “into law wage discrimination based on women’s salary history and how long she works.”
Angela Cockerham, the Mississippi state legislator who was the principal author of the bill, disagrees with claims that the bill harms women or perpetuates discrimination, saying the bill received bipartisan support and passed overwhelmingly. “I wouldn’t say we’re enshrining anything” in the bill, she says. “There is a lot of positive support for this particular bill.”
Cockerham says the defenses appear in case law and are commonly used by employers; she also notes that while the federal law does not specifically list “factors other than sex,” it also doesn’t limit them. Employers would still need to bring a credible defense for why it paid employees differently, noting the Mississippi bill “doesn’t mean just because these affirmative defenses are in here that it shuts a door on a claimant’s case,” she says. “It’s something an employer would have to prove.”
The state’s attorney general, Lynn Fitch, said in a statement that the legislature “has taken a critical step forward for empowering women by passing a law promoting equal pay for equal work for Mississippi women,” noting that once the bill is signed into law, “we will join the rest of the nation in promoting the basic fairness of equal pay.”
“Mississippi stands alone as the only state that would codify that directly into their state equal pay law.”
Federal circuit court decisions have been split on whether prior salary may be one of the “factors other than sex” that can be used to explain differences in pay, says Christine Hendrickson, a former partner at Seyfarth Shaw who is now the vice president of strategic initiatives at Syndio, which conducts gender pay analyses for large corporations. She says the 5th Circuit, which includes Mississippi, has not yet ruled on the issue.
Yet she and other employment lawyers say the law raises new issues. “The advocates are right—the Mississippi law provides fewer protections,” she says. “Mississippi stands alone as the only state that would codify that directly into their state equal pay law.” She points to the differences between the bill and the one in neighboring Alabama, which adopted a law in 2019 that says employers cannot refuse to interview or employ applicants—or retaliate against them—because they don’t answer questions about their pay history.
By explicitly listing these factors rather than leaving the interpretation open-ended, says Courtney Leyes, a partner at employment law firm Fisher Phillips in Nashville, the new bill could reinforce a “vicious cycle” for women’s pay. Research has shown that women tend to ask for less or are concerned that if they are too assertive in negotiations, they disrupt gender norms in ways that may penalize them.
The new bill “gives employers more outs, and more options to defend those claims,” Leyes says. The bill is “telling Mississippi courts that these are three valid exceptions,” rather than leaving it up to the courts to interpret it, she says.
The new bill is not just inconsistent with the trend in state laws, but the trend in what employers are doing in practice, says Annette Tyman, a partner at Seyfarth Shaw who compiled a list of all state equal pay laws with Hendrickson. “If you take a step back from the law itself and just look at what employers are doing,” she says, “many national employers have just made it a policy that they’re not going to ask [about salary] information.”
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Mississippi Finally Passed An Equal Pay Bill—But Some Advocates Say It Could Harm Equality - Forbes
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