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9th Circuit: Salary history doesn’t justify gender gap in pay

by | Apr 13, 2018 | Discrimination


According to the Pew Research Center, an average woman working in the United States makes about 82 cents for every dollar a male peer makes for doing the same work. Some of that pay gap can be explained by differences in choice of occupation, educational attainment, or work experience, but the majority of the gap is likely the result of gender discrimination.

One of the problems that women face in attaining more equitable pay is that any pay disparity in earlier jobs can continue to depress their wages over a lifetime. This is because many, if not most, employers base new hires’ pay in part on their salary history. If a woman receives lower pay in an earlier job — whether due to bias or not — that lower pay can be reflected in a lower salary at every subsequent job. An early salary disparity between men and women could thus lead to an enormous pay gap over the course of a career.

If setting a new hire’s pay based on her salary history serves to perpetuate an existing gender-based pay gap, should doing so be considered gender discrimination? The 9th Circuit Court of Appeals recently ruled that it should. The court held that the practice violates the federal Equal Pay Act.

In the case before the court, an Arizona teacher was hired as a math consultant by the Fresno Office of Education. Her salary was set by district policy at 5 percent above her previous salary. She later discovered that male consultants were paid more than she was and sued for gender discrimination. The district argued that its policy was gender-neutral.

“To accept the county’s argument would be to perpetuate rather than eliminate the pervasive discrimination at which the [Equal Pay Act] was aimed,” wrote the 9th Circuit.

New York is in the 2nd Circuit, so the court’s ruling doesn’t apply in our state. However, New York City prohibits employers from asking applicants about their salary histories, and New York State may soon follow suit. This appears to be a trend, as other states and cities, including California, Oregon, and Philadelphia, have also passed similar laws.

If you were asked about your salary history while applying for a job, or suspect that your salary history was used to justify paying you less than your male co-workers, consult an employment law attorney about your situation.

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