When the Alabama Legislature passed the Clarke-Figures equal pay act in 2019, it gave women recourse for receiving unequal pay.
But an expert told Alabama’s wage gap and workforce task force Monday that she wasn’t surprised to hear that no lawsuits have been filed using the law.
“Frankly, when I was looking again at the law, I wasn’t surprised because of the damages piece, the relief that’s available to victims,” said Andrea Johnson, director of state policy, workplace justice and cross-cutting initiatives for the National Women’s Law Center. “If I were an attorney representing somebody in Alabama, I would look at the federal law and I would look at the state law and I would probably go with the federal law because it provides greater relief for my client, which is to help them with their injury.”
Johnson was one of several experts to address the task force Monday at its second meeting as it brainstorms legislative recommendations to further close gaps in pay and labor force participation for women in Alabama.
Johnson suggested there are legislative actions that can shift from providing injunctive relief to women who experience pay discrimination to preventing that discrimination outright.
The first recommendation is a “salary history ban,” which goes further than the salary history retaliation protection provided in Alabama’s existing law.
“There’s research showing that these bans have helped close the wage gap in those states (where a ban has passed),” Johnson said. “And that’s remarkable because these bans have not been around very long. It’s only been a few years, but there’s a number of social science studies showing that they have already helped to narrow the wage gap.”
Research shows that when women refuse to share their salary history, Johnson said, they end up being paid less compared to men who refuse to share their salary history.
Instead of providing protection against retaliation, Johnson said the Legislature should consider banning employers from asking about salary history altogether.
By banning the question outright, Johnson said Alabama can give employers the clarity to avoid liability by taking the salary history discussion off the table.
Johnson also suggested protecting pay transparency by adding to the law that employees cannot be banned from discussing their pay or retaliated against for discussing it.
These protections could also head off lawsuits, which Johnson said she believes is how employees would rather resolve these issues.
Another legal requirement that could close the wage gap is transparency about salary range on job postings.
“This is an incredibly important measure for helping level the negotiating playing field and closing wage gaps,” Johnson said. “But it also has immense efficiency gains for employers who will be able to more quickly match with qualified candidates and won’t waste their time interviewing someone for the position.”
In addition to these new possible additions to the law, Johnson also recommended amending or striking language in the Clarke-Figures Act that shifts the burden of proving unequal pay to the employee.
“It has been the employer’s burden under equal pay laws, traditionally, to argue that they have a valid justification for paying that employee less than an employee of another sex or race doing the same job,” Johnsons said. “But the language in the Alabama law basically shifts that burden onto the employee, saying that — not only does the employee have to put in their complaint and provide a lot of detail about it, that they were paid unequal pay for equal work, they also have to say that the employer does not have a justification for that. That is not something that an employee will usually have any knowledge about. They often don’t know what factors an employer uses to set pay.”
Johnson also elaborated on how the damages piece of Alabama’s law falls short. Currently, if an employer is found to have underpaid an employee, they must pay the employee the wages that already should have been paid to them, plus interest.
“From our perspective, that is not adequate relief to compensate a victim for pay discrimination and its impact on their their economic security, their family’s economic security,” Johnson said. “The law isn’t enough to incentivize an employer to make sure they are paying people fairly to begin with because, frankly, it pays to discriminate if that’s the only repercussion, because if caught, all the employer really has to do is pay the employee what they should have paid to begin with.”
In addition to Johnson, the workforce also heard from other experts on how childcare improvements could help to reduce the workforce gap.
The task force will meet each month for the remainder of 2022 and will produce a report in December with legislative recommendations for the upcoming legislative session.