Since writing some initial thoughts about the legislation currently stewing in the General Assembly having ostensibly to do with “equal pay” for men and women (H7427 and S2475), I’ve read the legislation more closely and looked around at other states’ laws. The upshot is that, if this legislation passes, Rhode Island’s law would probably be the most radical and, separately, present the biggest risk to employers in the entire country.
First, note that discrimination laws already exist at the state and federal levels, and as my prior post on this topic pointed out, nobody has found any employers who aren’t already opposed to discrimination or employees who can give recent and compelling evidence that companies do discriminate on a systemic scale. This legislation must, therefore, be about something other than simple fairness in the workplace. The biggest piece making this legislation so radical, therefore, is its broad scope well beyond the battle of the sexes:
No employer shall pay any of its employees at a wage rate less than the rate paid to employees of another race or color, religion, sex, sexual orientation, gender identity or expression, disability, age, or country of ancestral origin for comparable work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions, except where the employer meets the standards set forth in subsection (b) of this section.
Plainly put, this gives the government power to investigate just about any business and dictate changes to its pay policies, because the only pay differentials that wouldn’t have legal risks would be those between people of the same race, religion, sex, orientation, gender identity, disability, age, and nationality. That is, for any two employees who aren’t more or less demographically identical, the lower-paid one could initiate a complaint with the state with the same treatment as complaints that the employer withheld pay, and the burden is on the employer to explain it and to prove that no other business practice could erase it.
Think about how much of an encroachment on private activity and interactions that is, as well as the presumption that government is some sort of neutral judge that can accurately assess every business decision. As of 2016, only a couple states include that broad scope of demographics in their “equal pay” legislation, and it looks like they’re less aggressive in putting the burden on the employer to prove innocence than Rhode Island would be under this legislation. In Massachusetts, the legislature shipped everything other than sex differences off to a three-year study commission for review.
That isn’t all, though. With their infamous inability to understand how legislation might interact with reality, Rhode Island legislators go farther. One of the ways an employer could justify a pay differential would be to show a “bona fide factor” that makes the two employees different, but this applies only if the factor is:
… not based on or derived from a differential in compensation based on race or color, religion, sex, sexual orientation, gender identity or expression, disability, age, or country of ancestral origin
Sure, there is plenty of semantic gray area for judges to play with if they want to make the law more or less insane. The compounding “based on” clauses make the language almost indecipherable, but the most obvious reading is that differences in pay aren’t legitimate if the person who makes more money has an advantage because of his or her identity group. Men tend to be stronger than women, so the advantage in a job requiring a lot of lifting could be shown to “derive from” that gendered quality. It could be seen as illegitimate to pay an atheist more because he or she will work Sunday while a devout Catholic coworker will not.
Especially given the failure of advocates to prove that this legislation is actually needed, its scope and its demonstrable tendency toward unintended consequences should be enough to make Rhode Islanders push their legislators away from the cliff… and question their competence to hold office while they’re at it.