The U.S. District Court for the Eastern District of Pennsylvania has struck down a Philadelphia ordinance prohibiting employers from inquiring about job applicants’ salary histories, on the grounds that such a restriction violates the First Amendment right to free speech.

California, Delaware, Maryland, Oregon, and Puerto Rico, as well as Philadelphia, Pittsburgh, New York City, and New Orleans, have passed similar legislation banning inquiries pertaining to salary history during the application process, either for public employers or all employers, as we have detailed in previous alerts. The goal of the laws has been to reduce the gender wage gap. The theory is that basing wages upon a worker’s wage at a previous job only serves to perpetuate gender wage inequalities since women are paid on average lower wages than men.

This legislative trend has met some resistance, as was the case with the wage equity ordinance passed by the City of Philadelphia last year. The ordinance banned employers from:

1. Making an inquiry about a prospective employee’s wage history or to require disclosure of wage history; and
2. Relying on the wage history of a prospective employee in determining the individual’s wages, unless the applicant knowingly and willingly disclosed his or her wage history to the employer.

The Chamber of Commerce for Greater Philadelphia challenged the ordinance on First Amendment grounds and sought a preliminary injunction in federal court. Ultimately, the court deemed the “inquiry provision” to violate the First Amendment’s free speech clause and granted the chamber’s motion for a preliminary injunction as to that portion of the ordinance. However, the court determined that the “reliance provision” did not to implicate speech, and thus the First Amendment, and denied the chamber’s motion as to that portion of the ordinance.

Despite his ruling on the “inquiry provision,” U.S. District Judge Mitchell S. Goldberg described the City of Philadelphia’s efforts in passing the ordinance as “laudable.”

State and local governments across the country that have enacted similar legislation can likewise expect similar First Amendment challenges.

To learn more about salary history inquiries and state and local legislation affecting the same, please contact:

• Christopher P. Maugans
• Kristin Klein Wheaton
• Caroline J. Berdzik
• Or another member of the Goldberg Segalla Employment and Labor Practice Group