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A bill awaiting action by Republican Wisconsin Gov. Scott Walker would take away the right of discriminated workers to sue employers in state court for compensatory and punitive damages.
The GOP-sponsored bill would reverse a right to sue granted in a 2009 law approved when Democrats controlled state government. It covers many types of discrimination, including age and race.
But in criticizing his Republican colleagues for approving the new bill, state Rep. Cory Mason, D-Racine, issued a news release on Feb. 23, 2012 that focused on women.
He said the bill would repeal a law that ensures "that women cannot get paid less than a man for doing the same job."
There’s no debate that the bill would repeal the right to sue contained in the 2009 law.
But would it also affect working women the way Mason says?
To explore how employment discrimination cases work, we spoke with two employment law experts, Milwaukee lawyers Jeff Hynes, who represents workers, and Scott Beightol, who defends employers.
There are two routes to filing an employment discrimination complaint: the state Equal Rights Division and the federal Equal Opportunity Employment Commission.
If workers prove discrimination using the state system, an administrative law judge can "make them whole" by ordering the employer to pay back pay with interest, legal fees and job reinstatement, if there was a termination. If the discrimination is proved in the federal system, often a "make whole" settlement is reached through mediation.
In either system, discriminated workers can collect larger sums of money from an employer -- compensatory and punitive damages -- only by suing.
A federal lawsuit has long been an option, but suing employers in state court for compensatory and punitive damages only became possible with the 2009 law adopted by the Democrats. That law is new enough, and discrimination cases take long enough to process, that no such state lawsuits have yet been filed. Under the current law, if such lawsuits are brought in state court, workers could collect as much as $300,000 in damages, depending on the employer’s size. (The employer must have at least 15 employees.)
Supporters of the 2009 law said at the time it was needed to enforce laws that require men and women to be paid equally and to deter employers from committing discrimination. Opponents said the law creates an unnecessary burden on businesses when workers already had legal avenues to collect damages for suffering discrimination.
Fast-forward to the GOP bill, promoted as a pro-business measure, that Walker’s spokesman said the governor is reviewing.
Would it, as Mason claims, repeal a law that ensures "that women cannot get paid less than a man for doing the same job"?
Mason argues the law ensures equal pay for women because filing lawsuits is the major way of enforcing civil rights laws. The threat of being sued in state court makes employers less likely to discriminate against workers, which also helps ensure pay equity, he added.
But ensuring the right to sue in state court, as the law does, is not the same as ensuring pay equity.
Mason also said there is an indication the "pay gap" between men and women in Wisconsin has decreased since the 2009 law took effect. He cited a 2009 study and a 2010 study by the American Association of University Women, which advocates for equity for women and girls. Using median annual earnings for full-time workers, the studies found that Wisconsin women earned 75 percent of what men did in 2009, ranking the state 37th; and 78 percent in 2010, ranking the state 25th.
Mason acknowledged, however, that the studies aren’t proof that the law caused the decrease in the pay gap. More importantly, the studies were an overview of pay -- they didn’t examine pay for women and men who do the same job, which is what Mason’s claim addressed.
What about the experts?
Hynes said the 2009 law deters discrimination because it is easier and less expensive to bring a workplace discrimination suit in state court than in federal court. If the GOP bill becomes law, he said, it would be harder for discriminated workers to collect damages and therefore harder to enforce laws prohibiting unequal pay.
Beightol disagreed that the federal system is more onerous and argued that discriminated workers have the same remedies available through federal court that they do in state court. He also made the point that no lawsuits have been filed in state court since the 2009 law took effect.
Mason said Wisconsin Assembly Republicans approved a bill to repeal a law that ensures "that women cannot get paid less than a man for doing the same job."
The law does not ensure pay equity, but rather gives discriminated workers the right to sue in state court for compensatory and punitive damages. So, if the GOP-backed bill is signed into law, that right to sue would be lost.
But discriminated workers would still be able to seek back pay and other "make whole" payments through government agencies, and they could still sue for compensatory and punitive damages in federal court.
Mason’s statement contains an element of truth, but ignores critical facts that would leave a different impression -- our definition of Mostly False.
Rep. Cory Mason, news release, Feb. 23, 2012
Interview and email interview, Rep. Cory Mason, Feb. 29, 2012
Email interview, Rep. Michelle Litjens spokesman Jon Turke, Feb. 29, 2012
Interview and email interview, Wisconsin Department of Workforce Development communications director John Dipko, March 1, 2012
Milwaukee Journal Sentinel, "Assembly passes relaxed wetlands regulation," Feb. 21, 2012
Milwaukee Journal Sentinel, "Republicans refuse to take up voucher limits," Feb. 16, 2012
Milwaukee Journal Sentinel, "Assembly sends Equal pay measure to Doyle," April 29, 2009
Milwaukee Journal Sentinel, "Senate approves bill allowing judges to award damages for sex discrimination," April 28, 2009
Wisconsin Legislature, Senate Bill 202 summary
Wisconsin Legislature, Senate Bill 202 (2011-2012)
Wisconsin Department of Administration, Senate Bill 202 fiscal estimate
Huffington Post, "Equal pay enforcement act on verge of being repealed by Wisconsin Republicans," Feb. 24, 2012
Center for Media and Democracy PR Watch, "Wisconsin GOP goes after equal pay for equal work," Feb. 23, 2012
Littler Mendelson employment law firm, "Legislatiion eliminates compensatory and punitive damages under the Wisconsin Fair Employment Act," Feb. 24, 2012
Wisconsin Legislature, Act 20 (2009)
Wisconsin Legislative Council, Act 20 memo
Interview, Milwaukee employer defense lawyer Scott Beightol, March 1, 2012
Interview, Milwaukee employee plaintiff lawyer Jeff Hynes, March 2, 2012
Wisconsin Legislature, Senate Bill 202 public hearing testimony, Oct. 19, 2011
Email interview, Gov. Scott Walker spokesman Cullen Werwie, March 9, 2012
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