Mary-Charlotte Domandi:
So I wanted to talk to you today about a bill that is working its way through the House. It’s called the Paycheck Fairness Act, and it builds on a bill called the Equal Pay Act of 1963. What does this bill do? What’s it all about?
Teresa Leger Fernandez:
So yesterday we celebrated the Equal Pay Day, which is the day that an average woman earns the equivalent of an average man. Like how many more days does it take for a woman to work in order to meet the average; and that’s because women are still making on average about 82 cents per dollar. The really sad thing for those of us in New Mexico is Latinas and Native American equal pay day isn’t until almost the end of the year. That is how horrible it is.
MCD:
So that means that if a man works for a year, a Latina woman or a Native woman has to work nine, ten, eleven, whatever, months more to make the same amount of money!
TLF:
Yup. You got it. And that’s why they started doing that. Just to try to give—when you say she earns 82 cents or 60 cents, that was one way of striking it home. And then another way was just the toil. You have toil that much longer. And so, you’re supposed to be paid equal, there’s the Lilly Ledbetter law, there’s all these other ones. But what they have found was that the manner in which the courts interpreted those laws were not favorable to women. So that if there was any justification besides sex, you can say, well, it’s, it might’ve been a little bit her sex, but also, you could come up with the flimsiest excuse and the court said, no, there was another reason besides sex. And so, but we did actually, we had a hearing on Wednesday on this issue. We heard from lots of experts, including a Republican witness to talk about these issues.
And we went, wow, that is really horrible. And they pointed out in these hearings—cause see, that’s how a bill normally works, it’s like, okay, somebody comes up with an idea. This bill has been negotiated and worked on because it was a bill that has been introduced in prior congresses. And so we’ve got the latest iteration. We had a hearing on it. We all got to ask questions about that. I asked questions that focused on women, Latinas, Native Americans, what can we do about this? And then yesterday, we actually had what they call a markup, where we looked at the bills, and we considered them in committee. We voted on any amendments. And then we passed it out. So yesterday we passed that bill and it was now ready to be heard on the floor.
But really there’s lots of reasons why women don’t get paid as much. One is that employers will say, well, how much did you make in your last job? And so if you were already underpaid vis-a-vis men in your last job, your new job freezes that inequity. And so one of the things the new law says is, you don’t ask people about what they get paid, their last job. And then the other thing it does is you cannot tell employees that they can’t talk about salaries, because there are some workplaces where you’re not allowed to know what anybody else is making. And that way you’re allowed to pay women less. You’re allowed to have these different pay scales where you’re paying different people less or more on something that’s not related to experience, to qualifications, to maybe bonuses because the way their performance. So those are two key things that are in the new law, three things. So one is that you have to have a bonafide reason bonafide to, you know, one of those words is like a real good reason, right? A true reason. So it has to be a true reason. And the bonafide reasons include things like performance, experience, education, unique skills. So those are things that, hey, you’re going to pay this man more because he has, these skills has this experience, he has this education—and that’s all right. You’re not saying you can’t pay a man more, but you have to have a good reason for doing it. And then you cannot freeze in, well, we always pay women less, so they earned less at the last job and continue to earn less here. And then, three, employees can talk with each other about what they make so you can find out, well, what does everybody else with similar skills make. That way women will find out if they’re being underpaid.
MCD:
Does it address the question of women’s work itself being lower paid? I mean our mother’s generation, basically they were funneled into teaching and nursing and so-called women’s work, which paid lower than quote unquote men’s work—even if it was blue collar work or not, or whatever. How does that factor in to this, if it does?
TLF:
No, this bill addresses solely fairness paycheck protection, which is two people in the same company doing the same job with the same experience, they should be paid the same. So whether you’re a woman or man, that’s what this lawn solely addresses. What you’re raising is a big issue. And that’s an issue that I think the pandemic has highlighted. Anybody with school-aged children now knows how important those teachers are, right? Because how hard it’s been. And yet we don’t pay them enough. We are going to be asking those teachers to do a whole lot more, now that—you know, we were asking them anyway, right? We asked teachers who are used to standing up in front their students to learn how to teach in a way that was like, Oh my God. Like, and some of them were good at, and some of them, they might be amazing teachers, but they weren’t good at Zoom teaching.
But now we’re moving back to the classroom and we are going to be asking those teachers to do so much more because they are dealing with children who are now further behind, because everybody has lost learning. There is trauma and hardship and mental stress that these children have. And then we might need to have them putting in more work. So we need to pay teachers more coming out of this pandemic, and part of the American Rescue Plan is it had that extra money so we can pay teachers more. So that is available to the schools. Yesterday we did a press conference about what’s in the ARP and you know, there’s $22 million for the Santa Fe schools. So some of that money can be used to pay teachers because they’re going to have to be doing a whole lot more work and it’s going to be harder, their work. So hopefully we will start paying teachers more.
MCD:
The other part of the gender gap that people talk about is the reality that many women have children. And so our careers can be sometimes less linear and have breaks in them than our male counterparts who tend not to be the stay-at-home parents during the early life of kids. Again, does that fit into that? Or how do you think about that in maybe more general terms?
TLF:
So no, once again, this bill is very limited to two people doing the same job, same experience. So what you’re talking about is if a woman took a break to spend the first five years of a child’s life at home and then said, okay, I’ve got them in kindergarten, I’m going back to work. What this bill would say is actually you have five years less experience. So we are allowed to pay less because you have five years less experience, which is a legitimate reason under this law, because the amount of experience is one of the factors that you could use in terms of what you’re paying. Other countries do interesting things, where they recognize the benefits that women bring to our society by having children. And they give them time to be with their children. They have paid time off. They have maternity leave. In my law firm regained maternity leave because we wanted people to be paid and with their children. We had paternity leave. Because we realized the benefit of getting an employee back after having that bonding time with the baby. And hopefully their baby might be sleeping more. They actually would be more productive when they came in. You know, I had three babies. So I know what it’s like in those early months after you give birth, you’re not sleeping. You don’t want people going back to work in those conditions.
MCD:
Were you able to take time off?
TLF:
Yeah. I took time. Cause we had that at our firm. Other countries make that mandatory. So you’re not leaving it up to the individuals. You were saying, this is an important societal goal, and we’re going to make it even for everybody. And when you do that, then women will make that choice, and women need to be able to make those choices and then be allowed back in, so that if you have a five-year break, maybe you’ll get paid a little less, but you’re going to get hired back in.
Because that’s part of the problem is sometimes you have incredibly talented women who won’t get hired back into what they’re qualified for. And instead they’re taking a job that is less than what they’re able to do. So there’s, there’s lots of nuances, and other countries deal with it better. You know, we’re just trying to get Paycheck Fairness Act right now in this bill. And then the next bill, it was the Pregnancy Accommodation Bill.
Sometimes you can’t take on everything. You have to take on issues, piece by piece. And that is what happens in Congress. We can make this fix here. We’re going to have to fight for it because as I said yesterday, we did get a few Republican votes, but we got so few of the people who are on the committee. How could you not support paycheck fairness to people doing the same job?
MCD:
One of the things that we know about Mitch McConnell is that he took a lot of time to pack the courts with conservative judges at many levels. Does a bill like this, make it easier for a woman to have her day in court and be successful? I mean, is that what’s going on here?
TLF:
Absolutely. Because what you have right now is you have a court decision that basically undermines those laws. So what Congress can do when you have those kinds of bad decisions is, it’s our prerogative just say, Oh fine, you didn’t like the way we worded it then, we’re going to make it very clear that the only reasons are these bonafide reasons. You cannot just come up with something that is not reasonable. You have to have a very specific reason why you’re paying a woman less for the same job. If she has the same qualifications, we responded to a court case. And so this is what you’re supposed to do now we’ve made it very clear.
And then the other thing we did was we said and all the three amendments to the law—worker safety, pregnancy, and equal pay that we did—we now allow a court to award attorney’s fees. And the Republicans say, Oh, these bills are not going to address the issue; they’re going to just make trial lawyers rich. The reality is that the damages for a woman might be very small. So an attorney can’t take that case—they would be earning 10 cents an hour for the work that you need to put in. And that’s one way corporations and companies can get away with this. There’s no true enforcement. Well, now what we said was sort of similar to the civil rights laws. The principle is really what’s important, and you want to protect that. So now let’s say it takes an attorney a year to win a case. Well, they can go to the judge then and say, it took me a year to win this case. Now all we got back was X amount of dollars and she’s hired and now she’s making the extra $10,000 that she should, but I don’t want to take part of her $10,000. So the court can now award attorney’s fees. So they’ll look at what are your hours, what’s a reasonable rate—yup, you won, here’s your pay. And the court will determine what’s reasonable. And I’ve won those cases when I’ve done my civil rights cases. That’s how you do them, because there’s no monetary value to those civil rights cases. And so you ask the court for attorney’s fees. And the Republicans hated that. But if you don’t have attorney’s fees, there’s no way you can protect your rights because you can’t enforce the law then. So that’s the other thing that we added in the three laws that we approved in Ed and Labor and moved to the floor, is a way to enforce your rights. Gotta enforce your rights or else they aren’t real!
MCD:
And it seems like that would provide an incentive to companies to do equal pay so that they don’t have to go to court and then pay those attorney’s fees.
TLF:
Exactly. I mean, that’s what you want. It’s just like, Hey, you can pay her the extra $10,000. Or you can spend a year or two years litigating this, and then you might have to pay $50,000 worth of attorney’s fees—plus the $10,000. So it is a way of encouraging companies to do the right thing. The Republicans kept saying, Oh, the employers will do the right thing because they know it’s the right thing. It’s like, well, that hasn’t been happening right now. And there are many employers who do the absolute right thing. So if you’re doing the right thing, great, this law is not going to apply to you because you’re paying everybody equally. But if you’re really like, you know, I, I like hiring this guy because he looks like me, people are still told, “and he has a family to support.” Well, women have families to support too.
So that was our work yesterday. And it was great work. But as you can see, it wasn’t work that came out of nowhere. We got the bill. We all looked at the bill. We decided what edits needed to be made. We had a hearing so we could ask questions from experts who were working in the field on this. And then we had what’s called a markup where we considered amendments. And now the bill will go to the floor. And on the floor there could be additional opportunity for both Republicans and Democrats to amend the bill. And what we often see is amendments coming from both sides. So stay tuned, everybody. We might get that on—we won’t get it in women’s history month because—
MCD:
—it’s over a few days.
TLF:
—it’s over in a few days. But we did—I love this, they symbolically held the committee hearing to mark up the bill and consider and approve the bill on the equal pay day yesterday. So that was nice.
MCD:
Well thank you. And to be continued.
TLF:
Bye bye everybody.
