By Andrew Oxford
The Santa Fe New Mexican
ALBUQUERQUE, N.M. — The state prison system argues in a lawsuit that it is exempt from a New Mexico law requiring employers to pay women the same as men for comparable work.
Though Gov. Susana Martinez signed the Fair Pay for Women Act in 2013 and touted the wage discrimination law while running for re-election the following year, her administration is fighting claims filed under the law and advancing an argument in the New Mexico Court of Appeals that could significantly undermine it.
Meanwhile, a former employee has brought a new claim against the Corrections Department.
In a lawsuit filed last month, Melinda L. Wolinsky, formerly employed as a lawyer for the state’s prison system, says she was paid $8,000 less per year than a male colleague in the same job. A spokeswoman for the department declined to comment on the pending litigation.
The lawsuit comes as the Corrections Department fights another wage discrimination claim in the state Court of Appeals, arguing that government agencies are exempt from the law.
The earlier case began in December 2013, when Alisha Tafoya-Lucero, a deputy warden at the State Penitentiary of New Mexico, filed a lawsuit claiming she was paid $29 an hour while a male colleague in a similar job was paid $39 an hour.
Attorneys representing the Corrections Department asked a state district judge in Santa Fe to dismiss the case. They disputed that Tafoya-Lucero was paid unfairly, but that was not why they argued for tossing the suit. Instead, the Corrections Department’s lawyers claimed all government agencies are exempt from the Fair Pay for Women Act. Tafoya-Lucero, the lawyers argued, did not have the right to sue for damages under the law.
Judge David K. Thomson rejected that claim. In a decision issued April 12, Thomson said the law does not contain any language waiving the state’s liability and said other anti-discrimination laws hold the state accountable, just like any other employer.
But he sided with the Corrections Department on another facet of its argument, potentially limiting punitive damages against public agencies.
The Corrections Department is appealing the first part of Thomson’s ruling, and a decision could define the law’s scope.
But Daniel M. Faber, the lawyer representing Tafoya-Lucero and Wolinsky, argues in a brief that the appeal will only compound “extraordinary” delays caused by the Corrections Department.
The Fair Pay for Women Act prohibits employers from paying wages that are less than those of men who do the same work. The law says anyone who believes she is paid unfairly can file a grievance under the New Mexico Human Rights Act with the Department of Workforce Solutions. If the department’s Human Rights Bureau finds a complaint is founded, the director can “attempt to achieve satisfactory adjustment of the complaint through persuasion and conciliation.”
If the commission’s staff cannot resolve the case with an employer, they can file a written complaint and compel the employer to attend an administrative hearing. The employee can also choose to take the case to court. And the employee can appeal in District Court if the Human Rights Bureau does not act on her complaint.
Lawyers for the Corrections Department argue it is exempt because the law does not mention the state government.
According to a 2015 report from the State Personnel Office, the state employed 9,901 women and 8,206 men in hourly positions.
Meanwhile, the average woman in New Mexico is paid 78.1 cents for every dollar paid to a white, non-Hispanic man, according to a study by the National Women’s Law Center based on 2014 data. The disparity is sharper among Native American and Hispanic women, who receive 51.8 and 55.3 cents for every dollar paid to white, non-Hispanic men, respectively.
The law’s biggest backers say they intended it to cover women working in the public and private sectors.
“The Fair Pay for Women Act absolutely applies to government,” said Pamelya Herndon, executive director of the Southwest Women’s Law Center, which helped draft the legislation. “If you just look at the cases that have been filed now, it shows this type of act was needed,” she said.
Though the Corrections Department’s lawyers are arguing for limiting the Fair Pay for Women Act, Gov. Martinez turned it into a campaign issue two years ago. When the governor’s challenger, Democrat Gary King, aired a television ad claiming he would demand equal pay for women, Martinez’s campaign criticized him for hypocrisy.
In an ad of its own, Martinez’s campaign said three women who worked for King while he was state attorney general sued him for paying them less than male colleagues. King settled the cases with nominal payments. And the Republican governor’s campaign said even the typically left-leaning American Civil Liberties Union praised Martinez for signing the Fair Pay for Women Act.
Aides for the governor did not respond to requests for comment.
The law imposes monetary penalties, allowing workers who are paid unfairly to recover six years’ worth of back wages. The law also allows judges to order an employer to pay triple that sum as a punitive measure.
As the act wound through the Legislature in 2013, Corrections Department officials raised concerns in comments to Finance Committee staffers about the cost of paying workers back wages and damages.
The only other agencies to weigh in on the law were the State Personnel Office and General Services Department, which handle human resources issues across state government, and the Administrative Office of the Courts and Attorney General’s Office, which would be responsible for various aspects of handling claims.
State Personnel Office staff noted the law does not require employees to prove their bosses are intentionally discriminating against them. Instead, to file a lawsuit, an employee must demonstrate a disparity in pay at her workplace. The employer then has the burden of proving the disparity is not discriminatory.
“By shifting this burden, bringing a lawsuit would be easier and the cost of defending could go up,” State Personnel Office staff said in a Legislative Finance Committee report on the law.
When asked about its costs, the act’s sponsor, Rep. Brian Egolf, D-Santa Fe, said: “There’s a very, very easy way to avoid paying the penalty. Pay women the same.”
Copyright 2016 The Santa Fe New Mexican