Friday, February 24, 2012

More on Wisconsin's Mythical Repeal of its Non-Existent "Equal Pay Act"

This morning I posted about how Wisconsin Assemblywoman Kelda Helen Roys from Madison falsely stated that the Republican-controlled Assembly had voted along party lines to repeal Wisconsin's non-existent "Equal Pay Act."

In my original post I charitably assumed this was a mere mistake. But I now believe it's a concerted campaign to distort what the Republicans have actually done. Why? Because other Democrats are spreading the same lie. For example, Racine Assemblyman Cory Mason:
Every time I think this legislative session could not possibly get any stranger or more shocking, my Republican colleagues do something else to surprise me. On February 21st, in a stunning move, Assembly Republicans voted to repeal Wisconsin’s Equal Pay Act. That's right, instead of passing bills to create jobs, Assembly Republicans repealed the law that ensured that women cannot get paid less than a man for doing the same job.
Both of the emboldened statements are false. As noted in my previous post, what the Assembly Republicans voted to repeal was Wisconsin's "Equal Pay Enforcement Act," which actually just allowed additional monetary remedies under preexisting substantive law, and did absolutely nothing to "ensure[] that women cannot get paid less than a man for doing the same job." Pointedly, even if Governor Walker signs the repeal, equal pay for equal work will still be the law of Wisconsin (and, perhaps more importantly, the law of the entire United States).

So I'm no longer willing to give the benefit of the doubt and assume that these are just mistakes. I'm now convinced that this an orchestrated campaign by Wisconsin Democrats to purposefully sow confusion. It's shameful.

In Assemblyman Mason's own immortal words, "Are you for real?"


As anonymous notes below, Governor Scott Walker has signed the repeal bill.


  1. Shameful? It may be incorrect but I doubt it is any more shameful than the distortions one political party does on the other's every day. See, e.g., dealth panels.

  2. Maybe more accurate to say, "shameless." But yes, I think it's contemptible for lawmakers to deliberately mislead people about the content of pending legislation. I have no problem with hard-edged rhetoric (like "death panels"), particularly from non-lawmakers (like Sarah Palin). But this isn't rhetoric. It's just lies. (Or am I mistaken?) The worst part is that they are duping people of good faith (such as you and Mr. May) into unknowingly spreading the lies.

  3. I don't believe that Governor Palin was the only person to use the term death panels. I am reasonably sure some GOP members of Congress and the Senate did as well.

    I guess I don't mind being called a dupe in this case. The actions of the Wisconsin legislature are not exactly what Ms. Roys suggested. At the same time, I don't see how one could argue with the prposition that the Wisconsin Legislature has at least effectively repealed the Wisconsin law that required equal pay for equal work. Paying men and women differently for the same work is a type of discrimination. The compensatory damages for such a discrimination claim would include payment to make up the differential. The Wisconsin GOP has eliminated compensatory damages from the state statute. That eliminates the remedy for that type of gender discrimination claim (unless, as Mr. May pointed out, one brings the federal claim and is prepared for the cost and expense of litigating in federal court).

    It is certainly untrue that the Wisconsin GOP repealed Wisconsin's Equal Pay Act. But, the larger point, that the Wisconsin GOP has eliminated a type of claim by eliminating the remedy, is true.

  4. Oh, it's on!

    I can argue against the proposition that Wisconsin "effectively repealed" the law that requires equal pay for equal work.

    First, that law is still there. I linked to it in both posts, but the exact wording is: "Employment discrimination because of sex includes . . Discriminating against any individual in promotion, compensation paid for equal or substantially similar work, or in terms, conditions or privileges of employment or licensing on the basis
    of sex ..."

    Second, eliminating compensatory damages does not eliminate the remedy for wage discrimination. Back pay—that is the difference between the wages actually earned and the wages that should have been earned—is still available. (See Wisc. Stat. § 111.39(4)(c), which predates the Equal Pay Enforcement Act and which the repeal bill leaves untouched.) Back pay is the basic and natural remedy for a claim that you've been paid too little.

    Third, your argument is absurd unless you are willing to argue that this bill would "effectively repeal" ALL employment discrimination laws. Because it would be just as correct (which is to say, not correct at all) to say that this bill effectively repeals the laws against racial discrimination in employment because it eliminates the remedy for the discrimination. But nobody is making that argument because it's obviously false. The only reason anyone is making the "equal pay" argument is because the 2009 Act the Republicans are trying to repeal is called the "Equal Pay Enforcement Act" and the federal law mandating equal pay for equal time is called the "Equal Pay Act."

    Fourth, by your logic, wage discrimination (and all other employment discrimination) was effectively legal in Wisconsin until the Equal Pay Enforcement Act was passed just three years ago. I think that conclusion would surprise a lot of employment lawyers in Wisconsin, not to mention the folks that originally passed the Wisconsin Fair Employment code all the way back in 1945.

  5. Oof. I feel like whatI imagine William Rosencrans felt like after Chickamauga. I'm on the right side but I can't deny I just took a beating.

  6. Minnesota's human rights act is still better than Wisconsin's. I win.

  7. OK- So Walker just signed the repeal yesterday. I get your argument but I still don't understand WHY the move was necessary? Did the move create jobs? Did it save taxpayer money? If so, by how much? What is the purpose of repealing the enforcement part? Were businesses hit with frivolous lawsuits? Was it holding back job growth? Even if the repeal doesn't really do much but make neat liberal talking points, WHY did they pursue it?
    Also, it is my understanding that there weren't many cases to qualify and none of them went to court. And shouldn't the state make is clear that discrimination is not tolerated? Why go through the trouble of repealing a bill that, symbolically anyway, provides a strong message against discrimination.
    Call my a cynic but there must be something more to this move than just eliminating a rarely utilized tool to assist justice.

  8. Thanks for the interesting comment, anonymous.

    I put forth some reasons supporting the repeal in my earlier post on this topic. For example, the Republicans and their business constituents say the repealed bill encourages frivolous accusations of employment discrimination and therefore reduces the profitability of employing people. I think it's reasonable to disagree with those reasons, as Mr. May quite convincingly did. But I don't think you have to resort to cynicism, or (as others have done) to accuse anyone of a "war on women," to explain these actions. Republicans are the pro-business party, and this bill is meant to make business more profitable.

    My own view is that, as you kind of acknowledge, the bill being repealed was a pretty useless bill that had never been used and should never have been passed, so this is just a game of political volleyball: when the Democrats are in power they pass these symbolic, pointless bills to make it seem like their doing something for the people that vote for them; when Republicans are in power they do the same.

    I will have more thoughts soon in a separate post.

  9. Andrea S. (aka anonymous)April 7, 2012 at 7:54 AM

    Thank you. I am a proud liberal who recently decided to do my own research before passing judgement on political issues which is how I stumbled on this blog. Thanks to this post I can rest easy knowing that I, as a woman, am not at war with the GOP. At least not in the equal pay department. I do know, however, that I am engaged in a battle over my uterus. But that is another topic entirely.


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