The following editorial by Senator Mike Doherty (R-23) on the legislative debate on pay equity legislation was published by NJ.com on January 27, 2017:
In this NJ.com editorial, Sen. Mike Doherty explains that the legislative debate over S-992 is not on the merits of pay equity, but on what constitutes a reasonable remedy to address instances of discrimination and deter future violations. (Flickr)
Everyone agrees that women deserve equal pay for equal work. Thankfully, both state and federal law already prohibit wage discrimination on the basis of an employee’s gender, as they rightly should.
Those prohibitions are explicit in the federal Civil Rights Act of 1964 and the Equal Pay Act of 1963, as well as in New Jersey’s Law Against Discrimination.
Further, the Lilly Ledbetter Fair Pay Act signed by former President Barack Obama in 2009 set the modern standard for how to address pay inequities experienced by women.
In a recent case, Alexander v. Seton Hall University, the New Jersey Supreme Court issued a ruling that effectively aligned how the state’s courts would handle gender-based wage discrimination cases going forward with the standards set forth in the Ledbetter Act.
I believe that it makes sense to codify that alignment in the New Jersey Law Against Discrimination, which would provide clarity to women who want to know how pay discrimination cases will be remedied in this state.
Instead, we have been presented with legislation (S-992) that goes far beyond what the federal government and other states have found to be a reasonable framework for correcting discriminatory pay inequities.
To his credit, Gov. Chris Christie clearly and concisely expressed many of the serious problems with this legislation in his conditional veto of the bill.
My many criticisms of the governor during his tenure have been widely reported. I have been perhaps the most vocal Republican opposition to many of his proposals and actions over the years. On this, however, he is right on the money.
By offering a conditional veto, it is clear that the governor sees room for improving current law, as do Senate Republicans.
Instead of working with us to improve a flawed bill, Senate Democrats tried, and failed, to override the governor’s conditional veto of the legislation.
To be clear, this debate is not on the merits of pay equity. This is a debate on what constitutes a reasonable remedy to address instances of discrimination and, hopefully, to deter future violations of acts that are already illegal.
With regards to S-992, my concerns lie with specific provisions of the bill that would set New Jersey as an outlier among the states.
Specifically, the legislation would create a new burden of proof for employers, provide for an unlimited recovery period, and impose a burdensome salary reporting requirement.
S-992 would change how the burden of proof operates in these cases, essentially putting employers in the position of having to prove their practices were not discriminatory, akin to being guilty until proven innocent.
With regards to recovery, the Ledbetter Act limits the period of employment on which damages may be collected for pay discrimination to two years, which we believe is reasonable. Under this bill, there would be no such limit.
The combination of a new burden of proof standard and an unlimited recovery period may require employers to produce evidence from decades ago to show that a payroll was based on legitimate practices, such as a seniority system. Many of those records may not exist today.
Additionally, this proposal would require any business that does work with the state to submit reports on an ongoing basis detailing the demographics and pay of employees.
That additional red tape would dissuade businesses, both small and large, from bidding on state contracts. The likely result would be less competition, resulting in higher costs to taxpayers.
Quite simply, the expensive and unworkable scheme that would be imposed by this legislation is designed to benefit trial lawyers first and foremost, with women, jobs and taxpayers as an afterthought.
Our Republican caucus has worked for months with the sponsor to develop a solution that is focused on women, not attorneys. Unfortunately, the other side wasn’t willing to be reasonable as they have in the past on a number of important issues.
If the sponsor is willing to work with us, we can achieve our shared goals of preventing future pay discrimination and providing clear remedies to women who have been wronged.
We can do this without the undesired consequences that the currently proposed legislation surely would invite.
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