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September 23, 2022

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Mississippi Poised to Enact Pay Equity Law

Mississippi is the only state in the country without an equal pay law. That may change soon.

On March 30, 2022, the Mississippi House and Senate both passed HB 770. The bill (1) requires employers to pay employees without regard to sex and (2) encourages equal pay for equal work. The bill sits with the state’s governor for signature or veto by April 23. If the governor does not act, HB 770 will become Mississippi law.

Mississippi’s HB 770 largely mirrors the federal Equal Pay Act. It prohibits employers from paying employees in the same establishment, but of opposite sexes, different wage rates if they are performing “equal work on a job, the performance of which requires equal skill, education, effort and responsibility, and which is performed under similar working conditions,” unless the pay difference is “based on” (a) a seniority system, (b) a merit system, (c) a system that measures earnings by quantity or quality of production, (d) or any factor other than sex—just like under the federal Equal Pay Act.

Unlike the trend in many states that limit the reasons for permissible pay differences (like CaliforniaColoradoIllinoisMassachusettsNew Jersey, and Washington), HB 770 makes clear that its “any factor other than sex” defense includes factors such as:

  1. The salary history demonstrated by the employee as compared to employees of the opposite sex in the same establishment;

  2. The continuity of employment history demonstrated by the employee as compared to employees of the opposite sex in the same establishment;

  3. The extent to which there was competition with other employers for the employee’s services as compared to employees of the opposite sex in the same establishment; and

  4. The extent to which the employee attempted to negotiate for higher wages as compared to employees of the opposite sex in the same establishment.

This bill runs counter to recent trends for other reasons, too:

  • Court have looked skeptically at the “any factor other than sex” defense into issues such as the use of salary history (or other business-related defenses that disproportionately tend impact pay for women). This law would endorse them.

  • Most recent state and local laws have prohibited requesting or relying on salary history. This law would codify the practice.

  • Most recent state (and city) pay equity requirements and proposals include pay transparency requirements, such as wage range disclosures to applicants or employees. This law would be silent on the issue.

Unless the governor vetoes HB 770, the law will take effect July 1, 2022.

Jackson Lewis P.C. © 2022National Law Review, Volume XII, Number 102

About this Author

Christopher T. Patrick employment lawyer Jackson Lewis

Christopher T. Patrick is a Principal in the Denver, Colorado, office of Jackson Lewis P.C. His practice focuses equal employment opportunity, including proactive pay equity analyses, compliance with regulations promulgated by the Office of Federal Contracts Compliance Programs (OFCCP), statistical analyses of potential discrimination in employment practices, and defending employment practices in OFCCP audits and investigations.

While attending law school, Mr. Patrick served as on the Editorial Board for The Journal for the National Association of...

Christopher E. Hoyme, Jackson Lewis, National Employer Defense Attorney, Legal Strategies, Lawyer

Christopher E. Hoyme is a Principal in the Omaha, Nebraska, office of Jackson Lewis P.C. His accomplishments in employment law were recently recognized by his selection as 2015 Lawyer of the Year in Litigation – Labor and Employment for the Omaha metropolitan area by Best Lawyers® and U.S. News & World Report.

Mr. Hoyme represents management nationwide in all facets of employment litigation. He has successfully defended employers across the country in over 40 federal and state courts, as well as before...