New Jersey Employment Lawyer Blog
Many studies have shown that the gender pay gap is real and is persisting. There are many ways in which employers can (and do) contribute to this problem. One is by perpetuating old discrimination by basing a new hire’s salary on what he/she was making at his/her previous job(s). This demand for a “salary history” was common for many decades, but is now being eradicated in many places, including New Jersey, which recently banned the practice. If you have suffered discrimination in the form of an improper salary history demand from a potential employer, you should contact a knowledgeable New Jersey employment discrimination attorney about your situation.
Many of these statutes and ordinances banning salary history disclosures are relatively new, and are still facing court challenges. A salary history ban ordinance in Philadelphia just cleared a major hurdle when the Third Circuit Court of Appeals ruled in favor of the city and found the ordinance constitutional. Philadelphia’s “Wage Equity Ordinance” said employers couldn’t inquire about an applicant’s earnings history, couldn’t require disclosure of earnings history and couldn’t retaliate against an applicant for failing to disclose previous earnings.
The Greater Philadelphia Chamber of Commerce sought to prevent enforcement of the ordinance, arguing that banning employers from asking these sorts of questions violated the employers’ free speech rights under the First Amendment to the U.S. Constitution. A federal district judge even agreed with the chamber, concluding that the ordinance represented a free speech violation and barring enforcement of the ordinance.
The Third Circuit, however, overruled that decision and allowed the ordinance to take full effect. The appeals court said that there was no free speech violation. That court stated that, while the ordinance implicated constitutional free speech rights, it was nevertheless valid because it furthered an important government interest.
The court declared that the government’s interest in eradicating the wage gap was important enough to make the ordinance constitutional. According to the appeals court, the City of Philadelphia presented “a plethora of evidence that … the wage gap is substantial and real” and that “researchers over many years have attributed the gap, in substantial part, to discrimination.”
The city’s success may help workers outside the city, including New Jersey workers
This ruling by the appeals court was obviously a huge win for working women and workers of color in Philadelphia. However, those in Philadelphia are not the only possible beneficiaries of this decision. Less than a year ago (in July 2019), the State of New Jersey passed its own statutory ban on mandatory salary history disclosures. That law, which took effect on Jan. 1, 2020, said Garden State employers couldn’t screen candidates based on their past wages, salaries and/or benefits packages. The law also banned requiring candidates’ salary histories fit within any bright-line minimum or maximum numbers.
Had the chamber’s challenge to the Philadelphia ordinance succeeded before the Third Circuit court, it potentially could have served as a starting point for attacking and blocking other salary history ban ordinances and statutes, such as those in New Jersey and New York City. (New Jersey’s law might have been especially vulnerable when you consider that the Third Circuit court’s rulings are binding in Pennsylvania, New Jersey and Delaware.) With the Philadelphia ordinance having succeeded, though, the appellate court ruling may both reduce the likelihood of future court challenges and provide a “blueprint” for defeating the ones that do arise, including opposition to New Jersey’s law.
What you can confidently take away from this Philadelphia case is that New Jersey’s salary history ban law remains fully in effect in this state. If you’ve been the victim of discrimination based upon a demand for your salary history, you may potentially have a winning case and an opportunity to recover substantial compensation. Talk to the skilled New Jersey employment discrimination attorneys at Phillips & Associates about your rights and your legal options. Contact us online or at (609) 436-9087 today to set up a free and confidential consultation and to find out how our experienced attorneys can get to work for you.