“There are a lot of different factors that go into the gender pay gap and there are a lot of different remedies, but this is one important piece,” said Kate Nielson, state policy counsel for the American Association of University Women. “People are sick of being paid unfairly. The ban on salary history is something incredibly tangible.”
Massachusetts enacted the first salary-history ban in 2016. Oregon, California, New York, Delaware, Vermont and Connecticut have since followed suit, as has Puerto Rico. New Jersey bans public employers from asking about a previous salary. The Hawaii Legislature passed a ban proposal and sent it to the governor. Republican Gov. Bruce Rauner of Illinois vetoed a ban last year, but the Legislature revived similar legislation this year.
On the flip side, Michigan and Wisconsin have enacted laws blocking city and county bans, as part of broader legislation seeking to pre-empt employer mandates such as paid sick leave.
A Familiar Question
To its proponents, a ban on asking the previous salary question makes intuitive sense.
“So many of us have been in the position of having to respond to that question,” said Andrea Johnson, senior counsel for state policy at the National Women’s Law Center. “It’s also an easy fix. It’s not that hard for employers to stop having this information and using it in the hiring process.”
Barring wage-history questions is one proposal seeking to narrow the gender wage gap. Others include requiring paid sick leave and family leave. Because salary-history bans incur no public costs, they’re easier to get enacted by state legislatures, Johnson said. But it’s too soon to know if the laws will have an impact.
“The hope is that it will focus companies and line managers on having more explicit pay policies and starting to rely on people’s skills and experience rather than their prior salary,” said Ariane Hegewisch, the program director for employment and earnings at the women’s policy research institute. “Because it hasn’t been implemented, we cannot say with certainty that it has been happening. But that is the hope.”
"It’s a pretty good guess that if you're offering a job to a woman, she's probably being paid less than men, so you might as well lowball her."
Jennifer Doleac, AN ECONOMIST AT THE UNIVERSITY OF TEXAS A&M
Cities including Pittsburgh, New Orleans, Chicago and San Francisco have adopted ordinances that prohibit asking new city workers for their salary history. Despite Wisconsin’s pre-emption of salary-history bans for private employers, Milwaukee last month adopted an ordinance prohibiting city agencies from asking applicants about salary history.
“It’s important to send a message to the private sector,” said Tony Zielinski, the alderman who sponsored the ordinance. “Success begets success. Eventually this will spill over into the private sector.”
It may end up in court first. The wage-history argument got a boost when a federal appeals court ruled in favor of a math teacher, Aileen Rizo, who sued the Fresno, California, school district for paying her a lower starting salary than her male colleagues based on her previous salary in a different state.
Prior salary is not a justification for paying women less than their male counterparts, the court ruled. Fresno officials said they would appeal the April decision to the U.S. Supreme Court.
Wage-history prohibitions have also been challenged in Philadelphia, which last year adopted a salary-history ban for private employers as well as public agencies. A dozen of Philadelphia’s largest employers and the local Chamber of Commerce sued, saying the bill infringed on First Amendment rights. A federal judge agreed, saying the law infringed on employers’ free speech rights, but also ruling that companies could not rely on previous salaries to set pay. The city is appealing.
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