On March 30, 2022, the Legislature passed the Mississippi Equal Pay for Equal Work Act. By strong bipartisan majorities, both the State House and the State Senate empowered Mississippi workers to ensure that they will not be paid less for their work because of their sex. Mississippi owes a debt of gratitude to the activists and leaders who have worked so hard for the right to equal pay for equal work. However, the law is far from perfect. While the main purpose of the law is to protect Mississippi women from pay discrimination, some leading advocates have expressed concern and even opposition to the final version of the bill.
Having reviewed the law from my perspective as a practicing employment civil rights lawyer, I agree that the law falls far short of what the people of Mississippi deserve. Still, I think that the law will do some good in some cases. At the least, it will fill in some of the gaps left open by the two primary federal statutes addressing the issue, the Equal Pay Act and Title VII. To understand the effects the new law could have, let’s consider some specific provisions of the law.
The law does not cover everyone, only those who work for an employer with five or more employees. As a practical matter, this is perhaps only a slight expansion of the federal EPA's coverage. And it only covers employees who are full-time, 40+ hours a week. I find it hard to understand why the Legislature believes part-time workers are less deserving of equal pay for equal work than full-time workers. Taken together, these definitions will mean the law is only a very slight expansion beyond existing federal protections.
And the remedy is not very strong. This may be where the new law fails workers the most. Under the MEPEWA, workers who have been paid less because of their sex are only entitled to back pay (with interest) plus legal fees and costs. Meanwhile, the federal EPA allows workers to recover liquidated damages—or double back pay—while Title VII allows workers to recover compensatory damages—money for the emotional and mental pain caused by invidious discrimination. The MEPEWA also fails to provide for punitive damages to punish business that repeatedly and willfully violate the law. If the Legislature wants to truly eliminate sex-based pay discrimination, it should amend the MEPEWA to allow workers to recover liquidated, compensatory, and punitive damages.
Many leading advocates are particularly worried about the language in the law that articulates the reasons other than sex that an employer may use to justify paying workers unequally. Respectfully, I am not particularly worried about this provision. After all, if any non-sex reason is a defense as the statute states elsewhere, then the listing of examples basically does nothing to change the meaning of the statute.
Like any new law, the MEPEWA leaves many questions unanswered. Surprisingly, the law does not define terms like “sex” or "retaliation." Will the law cover discrimination based on sexuality? Will it cover retaliation by workplace bullying and unfair discipline? The answers are not clear
All in all, I am cautiously optimistic about the Mississippi Equal Pay for Equal Work Act. I think it will help workers who could not have found any protection in federal law, but I believe that the people of Mississippi still deserve more. Most of all, I hope that the passage of this law will give more workers the courage to fight for their human rights to be free of discrimination and be paid fairly for their work. I also hope that the Legislature will build on the work it has done here to truly make Mississippi a place of equal employment opportunity.
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