Gender Equity

Franke Wilmer | Representative, Montana House of Representatives

I have worked on human rights for the last 20 years at Montana State University and have also chaired the Montana Human Rights Commission. It’s what got me interested in public service full time. And I think there are a couple of issues that bear on Montanans and their future when we talk about human rights. One issue is Native American rights. We have 12 tribes in Montana on seven reservations and a landless tribe in the Great Falls/Havre area. So it’s of particular interest to Montana and our future to think about how the issue of Indian rights affects the tribes right here.

But I want to talk about something I’ve worked on more recently, which is women’s rights more broadly, but in particular the equal pay for equal work issue, which has been on the public policy agenda, both federally and locally, since 1963 when President Kennedy signed into law the first equal pay act. It came up in Congress again in the last few years because of a case in Louisiana known as the Ledbetter Case.

Lilly Ledbetter worked for Goodyear Tires, for I think 18 years in management. I think she worked there longer but at least 18 in management. Right before she retired she got an anonymous letter calling to her attention the fact that she had been paid $1,000 to $3,000 less per month than any other male in the same position in the company, and that she should know that before she severed her relationship through retirement.

Lilly, who I’ve met and had dinner with in Boston after I listened to her speak for the first time, filed a complaint on the basis of pay discrimination. And she prevailed. She was awarded back pay. However the Supreme Court overturned that ruling on the grounds that she needed to file the complaint within six months of the first discriminatory paycheck. Of course at the same time employers have a legitimate interest in keeping their employees’ wages and salaries confidential in the private sector. She couldn’t have known that there was a pay differential until someone voluntarily informed her they suspected there was a difference, and that it was consistent and discriminatory.

There was, in other words, a gap in the law, a contradiction which at one point made it illegal to discriminate but also made it illegal for the person experiencing discrimination to find out they were experiencing discrimination in their pay.

Congress began to work on, and past Secretary of State Clinton was a major mover of this bill, a bill called the Lilly Ledbetter Pay Act. It eliminated that statute of limitations that said you had to file a case within six months of discriminatory pay and said basically, from the date of discovering the discriminatory pay, however you discovered it. That really opened up new avenues for women to receive equal pay and to have the ability to seek redress for their suspicions of being paid inequitably.

In Montana in 2009 I introduced a bill that would have elaborated a similar provision in Montana State law. In 1983 Montana passed a comparable worth or equity pay bill, but it only applied to public employees. I wanted to do a couple things. One, extend it to the private sector. The second was to make it enforceable. The old law said that men and women had to be paid the same for comparable work. But it didn’t say what you could do if you thought you weren’t! It said that if discrimination had occurred the employer had to pay a fine per pay period, which actually was pretty exorbitant and would have been burdensome to small businesses, which is most of Montana employers, and I’ll get to that in a moment.

The point is that we had the provision since 1983 for pay equity, but we didn’t have the ability in that current law to enforce it and it only applied to public employees.

The proposals were to clarify how we defined pay equity, to actually eliminate the word “women” and just call it person of either gender so that it would cover men as well. And thirdly there are so many legitimate reasons people in similar jobs could be paid differently, such as merit or seniority. So we elaborated what the legitimate conditions were. Because employers, understandably, don’t want a mandate that says you don’t get to decide what your employees are worth. The government gets to decide. And I don’t think they should have that mandate. But the main motivation for the bill was to make sure that they weren’t using gender as the only reason for paying people differently.

If established in law, it would have the criteria that constitutes pay inequity and also what things were legitimately excluded from that category. It also provided for enforcement so that if gender were the only variable left on the table to explain why two people were paid differently, the person who was paid less could seek redress through the Montana Human Rights Commission. You always retain the right through the Montana Human Rights Commission process to take it out of the commission process and go to federal court. That would have been part of the law. Then in light of what I think are legitimate concerns from the business community for exorbitant fines, we cut the fine in half. The fine was $500 per pay period. In Lilly Ledbetter’s case, imagine 18 years of pay inequity that she finds out about in the seventeenth year, and the employer has to pay $500 a week if she was on a weekly payroll, for every week of the 17 years for inequitable pay, in addition to paying her the differential she should have received.

I think it was a good bill. But let me tell you why it didn’t pass. It died on party lines.

Making the case is important. Getting up and having a good hearing with good testimony, or trying to bring that bill off the table of the Committee to the floor of the legislature, which means that you give that same speech on why this is important to the entire 100 members of the legislature, is important. Even though it didn’t pass, and we were pretty sure it would die on party lines, we were educating people. We were brining to their attention why it’s important and that’s what I want to talk about.

It’s important because31 percent of Montana families are headed by women and 27 percent depend on a woman’s income, so about 60 percent of Montana families depend on the income earned by women. If they’re not being paid fairly, the families are not receiving the income that they should equitably receive. They’re being deprived of income they should be earning, that one of the family members, one of the parents, should be earning.

And everything about the family’s condition, from prospects to being able to pay their children’s college tuition to being able to afford health insurance, is being affected by that pay loss. Nationwide, women are paid about 77 percent of what men make, which means about 77 cents of the dollar, which leaves 23 percent of income women are being deprived of. Montana, unfortunately, is a little bit lower—70 percent. And for Native American women providing for their families, its 58 percent.

They make 58 cents of the dollar for the same work.

There are many reasons for a wage differential that are perfectly legitimate that have nothing to do with wage discrimination based on gender. For example, merit. This person’s performance has been consistently valued. I was a department head here at Montana State University and I’ve evaluated faculty. There are differences in the merit pay and the merit of a person’s work. That has nothing to do with gender. Unions would tell you seniority is a legitimate reason for being paid differently that has nothing to do with gender. Or, the example that I like using is that men and women who are in different academic disciplines, which means that the market is determining the difference. Some disciplines like the arts are notoriously paid lower rates while economists are notoriously paid higher, with political scientists somewhere in between. The potential market worth of a professor’s skill set in the private sector partially determines those pay differences.

A gender pay equity policy has to make sure that all of those legitimate and bona fide reasons for a pay difference are recognized and not infringed upon by any law, that an employer has good reasons for paying people differently that have nothing to do with discrimination or gender. The bill I proposed in Montana attempted to do that.