September 19, 2017
Authored by: Sarah Holdmeyer
Many employers base an employee’s pay on his or her past salary. Applicants are typically asked, either on the application or during an interview, how much they made in their previous job(s). Critics of this practice believe using salary history to set current salary is discriminatory and prohibits women and minorities, frequently paid less than their white male counterparts, from overcoming pay disparity.
In April 2017, in Rizo v. Yovino, the 9th Circuit Court of Appeals held that salary history is a valid justification for paying a female employee less than her male counterpart, so long as the employer’s use of the salary history was reasonable and accomplished a business purpose. Several states and municipalities, perhaps in response to Rizo, have enacted and/or proposed legislation prohibiting the practice of asking applicants about their salary history. Other states and municipalities previously banned this practice.
In June 2017, both Delaware and Oregon passed statutes prohibiting an employer from asking an applicant his or her past salary, either on the application or during the interview. They join Massachusetts, New York City, San Francisco, and Puerto Rico, with similar bans. California, Mississippi, Pennsylvania, and New Jersey have also proposed similar bans. Philadelphia passed a