Does Asking about Salary History During the Interview Process Perpetuate Pay Disparity?

Employee facing employer

New Hampshire has a bill pending that would prevent an employer from asking a job applicant about his or her past salary. At least eight other states already have laws like this on the books.

What is wrong with asking about salary history? The problem is that women have historically been paid less than men for performing comparable work. So, if a new employer decides to pay an applicant based on what the applicant earned in the past, the new employer may be perpetuating the discriminatory pay disparity.

Recent Case Is Unsettled on Pay Disparity

A recent Ninth Circuit decision (Rizo v. Yovino) found that prior salary alone or in combination with other factors cannot justify a wage differential between male and female employees under the Equal Pay Act. The court held that an employee’s prior salary does not constitute a “factor other than sex” upon which a wage differential may lawfully be based under the Equal Pay Act. The court concluded that “any other factor other than sex” is limited to legitimate, job-related factors such as a prospective employee’s experience, educational background, ability, or prior job performance.

The court reasoned, “[i]t is inconceivable that Congress, in an Act the primary purpose of which was to eliminate long-existing ‘endemic’ sex based wage disparities, would create an exception for basing new hires’ salaries on those very disparities—disparities that Congress declared are not only related to sex but caused by sex. To accept the County’s argument would be to perpetuate rather than eliminate the pervasive discrimination at which the Act was aimed.”

The U.S. Supreme Court case recently vacated and remanded that decision because the Judge who authored the decision passed away before the Court issued the decision. The Ninth Circuit (and other courts) will likely revisit this issue in the near future.

Upton & Hatfield’s Experience with Equal Pay Act Litigation

The Employment Law Group of Upton & Hatfield, LLP in Concord has attorneys experience in litigation under both federal and state Equal Pay Acts. If you believe that you are being discriminated against on the basis of gender, or want to know more about what qualifies as a violation under the Equal Pay Act, contact an attorney at Upton & Hatfield, or you can read our recent blog post, The Equal Pay Act: What You Need to Know.

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