Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Friday, May 5, 2017

NYC Passes Legislation Banning Employers' Use of Salary Histories

 Employers in New York City Won't Be Able to Ask for for Your Salary History Anymore

Mayor Bill de Blasio, a Democrat, signed a bill on Thursday that makes it unlawful for those involved in the hiring process to inquire about what an applicant currently makes -- a measure that takes aim at the gender pay gap.

 

"This is about fixing a broken history. This is about overcoming years and years of discrimination that held people back," de Blasio said at the signing ceremony.

 

More than 20 states, from California to Georgia to Vermont, are considering similar legislation that would bar employers from asking about a job applicant's pay history, according to the National Conference of State Legislatures. New York City joins Massachusetts and Philadelphia, which already have those laws on the books.

 

Such bills look to address a real problem. Women earned 79.6 cents for every dollar men made in 2015, according to data released by the Census Bureau last year.

 

A court decision last week has also renewed calls for local action. The 9th U.S. Circuit Court of Appeals overturned a lower court and ruled that employers are allowed to pay women less than men based on salary history if they have a legitimate business reason for using that information. [See the prior blog about the case here.]

 

Democratic members of Congress hope to take federal steps to address the issue too, even though they're the minority in both houses.

 

The Paycheck Fairness Act, which has been introduced by Sen. Patty Murray of Washington and Rep. Rosa DeLauro of Connecticut, would strengthen provisions in the Equal Pay Act of 1963. Part of the bill bans employers from asking about a job candidate's pay history during the interview process. [For recent scholarship on the PFA see the prior blog post here.]

NY state has proposed a similar bill:

2017 New York Assembly Bill No. 2040, New York Two Hundred Thirty-Ninth Legislative Session, Apr. 4, 2017  

Section 1. Legislative intent. The legislature hereby finds that New York should lead the nation in preventing wage discrimination.
 
The wage gap between men and women is one of the oldest and most persistent effects of inequality between the sexes in the United States.
 
The 1963 Equal Pay Act and the 1964 Civil Rights Act in the United States established the legal right to equal pay for equal work and equal opportunity. Yet half a century later, women are still subjected to wage gaps and paid less then men.
 
The concept of comparable worth attacks the problem of gender-based wage discrimination by mandating that jobs characterized by similar levels of education, skill, effort, responsibilities, and working conditions be compensated at similar wage levels regardless of the gender of the worker holding the job.
 
The goal of pay equity is to raise the wages for undervalued jobs held predominantly by women. Today, women make only 77 cents per every dollar earned by a man for a comparable job, a gender wage gap of 23 percent.
 
This translates into thousands of dollars of lost wages each year for each female worker, money that helps them feed their families, save for a college education and afford decent and safe housing.
 
Pay disparities affect women of all ages, races, and education levels, but are more pronounced for women of color. Minority womenmake as little as 54 cents per dollar for a comparable job held by a man.
Female-dominated jobs pay twenty to thirty percent less than male-dominated jobs classified as comparable in worth and more than one half of all women work in jobs that are over seventy percent female.
 
Women are more likely to enter poverty in old age for several reasons: A lifetime of lower wages means women have less income to save for retirement, and less income that counts in their Social Security or pension benefit formula.
 
The current life expectancy for women means they will, on an average of three years, outlive men. Yet they will have to stretch their retirement savings, which are less to begin with, over a longer period of time.
 
The existence of pay inequity is a manifestation of deep-seated sex discrimination that prevents both equality of pay for women and equality of opportunity for both sexes.
 
More women in the United States are obtaining college degrees and increasing their participation in the labor force and family-friendly legislation, including the Equal Pay Act, Family and Medical Leave Act, and Pregnancy Discrimination Act, and policies such as flex time and telecommuting, have increased options to create a win-win situation for women and their employers.
 
Despite the progress, women continue to suffer the consequences of inequitable pay differentials: in 2010, the average college-educated woman working full-time earned $47,000 a year compared to $64,000 for a college-educated man.
 
During 2012, median weekly earnings for female full-time workers were $691, compared with $854 per week for men, a gender wage gap of 19 percent.
 
Fair pay strengthens the security of families and eases future retirement costs while also strengthening the American economy. In order to achieve fair pay, policymakers must enact laws that prevent gender based wage discrimination from when women enter the labor force.

In order to do so, it is necessary to prevent employers to base a woman's pay based on her previous pay history.
 
Because the pay is already based on gender discrimination, allowing pay history to be requested by employers is equivalent to maintaining a standard of lower pay for women performing similar jobs as men. This practice of asking for pay history must be outlawed

http://lawprofessors.typepad.com/gender_law/2017/05/ny-proposed-legislation-to-prohibit-employers-from-seeking-salary-history-.html

Equal Employment, Legislation | Permalink

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