In 2009, Wisconsin enacted a law that would help victims of sex discrimination win bigger awards. Such victims already could file their cases with the federal Equal Employment Opportunity Commission, in federal court, or with the Wisconsin Department of Workforce Development. But lawmakers thought that once an accuser had won before an administrative-law judge — the final step of the process that starts with the Department of Workforce Development — she should then be allowed to file her case in a Wisconsin circuit court. Circuit courts were directed to award compensatory and punitive damages of up to $300,000 for large employers, whereas administrative-law judges may only make the accuser “whole” by awarding back pay, attorney’s fees, etc.
That law was called the “Equal Pay Enforcement Act,” and Wisconsin governor Scott Walker signed its repeal on Thursday. Unsurprisingly, the Left pounced. State senator Dave Hansen accused Walker of “turning back the clock on women’s rights in the workplace.” His fellow senator Christine Sinicki said the move was typical of an “anti-woman” legislative session. Obama’s campaign joined in the fun, with spokeswoman Lis Smith claiming the bill “showed how far Republicans are willing to go to undermine not only women’s health care, but also their economic safety.”
But simply put, there is no great sex-discrimination problem in Wisconsin workplaces that is not being addressed by federal law and preexisting state laws. Further, by making it easier to extract punitive damages from businesses, the 2009 law made Wisconsin companies vulnerable to frivolous claims.
Regarding sex discrimination, the statistic most often bandied about is that women make 77 cents for every dollar that men make — but this number is useless, because it does not account for the fact that women enter different fields and make different employment decisions than men do. (For example, women are far more likely to leave the work force following the birth of a child.) Once these differences are taken into consideration, the wage gap shrinks substantially; some studies find that it disappears almost entirely. And of course, men and women differ in ways that are not easily measurable by researchers, and yet might still affect their earnings.
(A similar calculation is used to support the Left’s claim that Wisconsin rose from 36th to 24th in rankings of gender parity between 2009 and 2010. Further, the ratio of female to male income in Wisconsin is a volatile number, making it difficult to conclude anything from a single year’s change.)
No doubt, there is still some sex discrimination in America, and given that it is illegal, alleged victims should have their day in court. But that does not mean states should make lawsuits as remunerative as possible — and there’s no evidence that the federal government and longstanding Wisconsin laws are doing an inadequate job of providing relief.
The EEOC is the executive agency in charge of enforcing federal anti-discrimination law. Charges may be filed by mail at no charge, and there is a field office in Milwaukee. Nationwide, the EEOC resolved more than 30,000 allegations of sex discrimination in 2011 alone. More than 20,000 of these cases ended because the EEOC found “no reasonable cause” to believe that sex discrimination occurred. Another 5,700 cases were closed for administrative reasons (such as that an accuser backed out, or that related litigation resolved the matter in court). The remaining cases cost companies more than $145 million in “monetary benefits” — these are benefits paid by companies to resolve the charges against them, not benefits awarded in court.
When the EEOC fails to resolve a claim, the agency may file a lawsuit in federal court; in addition, the federal Equal Pay Act allows accusers to go directly to court without filing a complaint with the EEOC first. Unlike accused businesses, which always must pay expensive attorney’s fees, accusers with strong cases can often obtain a lawyer on a contingency-fee basis — meaning they pay nothing if they lose. Remedies may include punitive damages — as in Wisconsin state courts under the 2009 law, these can go as high as $300,000 for large employers.
But even before the 2009 law, Wisconsin provided additional safeguards against sex discrimination in the workplace. Whereas federal law applies only to companies with 15 or more employees, Wisconsin’s Fair Employment Law covers employers of all sizes. If, upon investigating a complaint, the Department of Workforce Development finds probable cause to believe that discrimination occurred but cannot negotiate a settlement, the case goes before an administrative-law judge, who can award damages — just not punitive damages.
Between the EEOC, the federal courts, and the Department of Workforce Development, workers in Wisconsin who face sex discrimination have plenty of options for being made whole. There is no reason to add state circuit courts to the mix and hand them the authority to award massive punitive damages. The Wisconsin legislature was wrong to do so in 2009, and Governor Walker was correct to repeal the law last week.