Wisconsin v. Minnesota Blawg War Smackdown

Speaking of Wisconsin, Minnesota, and Minnesota legal blogs, our pal Nick May has an entertaining and informative post over at his excellent Minnesota Employment Law blog entitled, "Another Reason Minnesota is Better Than Wisconsin." That said, I am now going to tear it to shreds.

Before I get into that, though, some background. People often ask me, "Bart, what are your main reasons for blogging at the Gillette-Torvik Blog?"*** Here's my answer: (1) it gives me a forum in which to publicly annoy and/or humiliate Mr. Gillette; (2) it gives me a forum to defend the great state of Wisconsin against untrue and/or uncharitable accusations; and/or (3) it allows me to use "and/or" as often as I want, and no one can do anything about it.

[***People never actually ask me this. In fact, it's not clear that I've ever actually spoken to anyone who knows about this blog.]

Mr. May's post gives me the chance to do all three at once, hopefully. The topic of his post, after some neighborly needling, is recent legislative activity by the Republicans in the Wisconsin Assembly. According to Mr. May, the Assembly has recently passed two bills: the first "repeals an employee's right to recover compensatory and punitive damages when they have proven in court that they were victims of workplace discrimination or harassment;" the second, according to Mr. May is a bill that repeals Wisconsin's Equal Pay Act, "which guarantees women the same pay as men for doing the same work."

This is supposedly part of a "pro-jobs" agenda. Mr. May doesn't see it. For example, regarding the repeal of the damages:

one has to question how denying victims of discrimination full compensation for the workplace discrimination they experienced creates jobs. I guess the employer could use that extra cash to hire a younger, male, non-disabled person, but I doubt that argument is one anyone is willing to legitimately make. Moreover, the victims of discrimination are often terminated, resulting in less jobs, not more. Removing some of the teeth from these anti-discrimination laws could lead to an increase in discriminatory terminations because employers know the cost of engaging in discrimination is significantly less. Conversely, the realization that it may be liable for compensatory and punitive damages may deter an employer from engaging in a discriminatory termination, thus keeping a job.

One of the ways that I try to annoy Mr. Gillette is to come up with charitable interpretations of his ideological opponents' ideas and/or arguments. Since I have every reason to believe that Mr. Gillette is in Mr. May's corner here (based on certain Facebook postings I am privy to), that is what I intend to do now.

Here's one argument for why repealing employment discrimination laws are "pro-jobs" bills: employment discrimination laws raise the risk and cost of hiring employees; the more damages allowable, the higher that cost and/or risk. During a jobs crisis, government ought to be reducing the cost and risk of hiring people. That's one argument. There are others.

But haven't the employment discrimination laws worked just fine for decades in Wisconsin with these damages available? In other words, haven't employers been able to do just fine under the current regulatory regime?

In fact, no. What Mr. May does not mention is that compensatory and punitive damages were not available under the Wisconsin Fair Employment Act until 2009! So the Wisconsin Republicans' bill would simply undo what the lawmakers perceive as a recent mistake—not some venerable feature of Wisconsin law.

Well, okay, but won't victims of employment discrimination be left without a remedy? No, almost never. The Wisconsin Fair Employment Act is largely duplicative of the federal anti-discrimination laws, all of which allow the full panoply of damages. Indeed, one of the business lobby's chief complaints is that the WFEA creates an unnecessary layer of administrative hearings, which of course cost money (and therefore increase the costs and risks of hiring employees, at the margins).

Now what about those dastardly Republicans and their plan to repeal the Equal Pay Act? Isn't this part of their ongoing war against women, with the eventual hopes of enslaving them in baby-making factories? Mr. May pulls no punches:

The other bill that passed the Wisconsin Assembly and is presumably sitting on Governor Walker's desk is even more bizarre. The Assembly has voted to repeal the state's Equal Pay Act (EPA), which guarantees women the same pay as men for doing the same work. I never would have guessed that there are people who would have the guts to publicly admit they have no problem paying women less than men, but I've been proven wrong again. And the irony of course, according to this representative, is that pay disparity between men and women has significantly dropped in Wisconsin since the passage of Wisconsin's EPA in 2009, which most of us would assume to be a good thing.

This is all a big misunderstanding. There is no such thing as the Equal Pay Act in Wisconsin. Instead, the 2009 Act that created the right to get compensatory and punitive damages under the WFEA—the Act discussed above that Republicans are now trying to appeal—was entitled the "Equal Pay Enforcement Act." This is confusing because there is a federal law called the "Equal Pay Act," which requires "equal pay for equal time." But Wisconsin's Equal Pay Enforcement Act actually has nothing to to with "equal pay for equal time"—it just provides for compensatory and punitive damages for the substantive laws passed previously. Since there is no separate Wisconsin Equal Pay Act, there is no separate bill to repeal it.

In other words, both of the bills Mr. May criticizes are actually the same bill.

I don't blame Mr. May for this mistake. I don't even blame Mr. Gillette, though I believe it is his Facebook propagandizing that led us down this road. No, I blame "this representative": Democrat Kelda Helen Roys, of Madison, whose Facebook note—shared by Mr. Gillette (among many others, surely)—commits the original sin of erroneously referring to the 2009 act in question as the "Equal Pay Act" and giving the impression that it is a state law analogue of the federal Equal Pay Act.

Ms. Roys is running for Congress, by the way.

(For the record, the WFEA does require equal pay for equal work in that the definition of "unlawful sex discrimination" includes differentiation between individuals of different genders in “compensation paid for equal or substantially similar work. ” Wis. Stat. § 111.36(1)(a).)

But perhaps I've argued myself into a corner on the most important issue of whether Minnesota is superior to Wisconsin. After all, surely the lawmakers in Minnesota take the time to read the bills they vote on—or at least the ones they author. Oh, wait; no, they don't.

UPDATE: Mr. May responds here.